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COMMENTARIES
CONSTITUTION OF THE UNITED STATES;
WITB
A PRELIMINARY REVIEW
or
THE CONSTITUTIONAL BISTORT OF THX COLONIES AND STATK8,
BEFORE THE ADOPTION OF THE CON8TITUTI<»l.
By JOSEPH STORY, LL. D.,
DAHX PROFSffOR OF LAW IN BARTARD UHITXRSITr.
IN THREE VOLUMEa
' MagifiUatUnM igitar opos Mt } lino qnoniin pradaDlii ae dilifmtiiL •■•« eiTitti noo peU«t i
quonunqiM deaeripCioM oomia ReipobUoi moderatio oontinatnr."
• • CfOBSo »B JLb*. lib. 3. cap. SL
"Ooveminttit ia a contriTaoee 6f^!iooiao wjiQ^ to'^troVk^ i«r JK^ufn waata."
VOLUMS?Il.-
BOSTON:
HILLIARD, GRAY, AND COMPANY.
* CAMBRIDGE:
BROWN, 8HATTUCK, ANDCO.
1833.
^*'^*'' \ ' Digitized by Google
THEKh.v/V YORK
PUBLIC LIBRARY
TILOEN'FoBBoATlifs
Entered aoeording to the act of Congren in the year one thousand eight hondred and thirty-threey
by JosBrH Stokt,
in the Clerk'i office of the District Court of the District of Masiachuietts.
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E. W. M E T Va iJ f" ^^V t?0 M P A N T,
Printers to the University.
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COMMENTARIES.
CHAPTER Vn.
DISTRIBUTION OF POWERS.
§ 517. In siffveymg the general structure of Ae
constitution of the United States, we are naturally led
to an examination of the fundamental principles^ cm
which it is organized, for the purpose of carrying int^
eflfect the objects disclosed in the preamble. Every
government must include within its scope, at least if it
is to possess suitable stability and energy, the exercise
of the three great powers, upon which all governments
are supposed to rest, viz- the executive, the legi^tive,
and the judicial powers. The manner and extent, in
whidi these powers are to be exercised; and the fimc-
tionariesy in whom they i&fe 'toJbe vested, constitute the
great distinctions, which are known in the formS of
government In absolirte^,^yfetii^ent» the whole
executive, legislative, anil jjiidieiaJ.w>wers are, at least
in their final result,^ exclusively confined to a single in-
dividual ; and such a form of government is denominat-
ed a despotism, as the whole sovereignty of the state is
vested in him^ If the same powers are exclusively con-
fided to a few persons, constituting a permanent sove-
reign council, the government may be appropriately
denommated an absolute of despotic Aristocracy. If
VOL. II. 1
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2 CONSTITUTION OF THE U. STATES. [BOOK III.
they are exercised by the people at large in their origi-
nal sovereign assemblies, the government is a pure and
absolute Democracy. But it is more common to find
these powers divided, and separately exercised by in-
dependent functionaries, the executive power by one
department, the legislative by another, and the judi-
cial by a third ; and in these cases the government
is properly deemed a mixed one ; a mixed monarchy,
if the executive power is hereditary in a smgle person ;
a mixed aristocracy, if it is hereditary in several chief-
tains or families ; and a mixed democracy or republic,
if it is delegated by election, and is not hereditary. In
mixed monarchies and aristocracies some of the func-
tkmaries of the legislative and judicial powers are^ or at
least may be, hereditary. But in a representative re-
public all power emanates from the people, and is ex-
ercised by their choice, and aever extends beyond the
lives of tl^ individuals, to whom it is entrusted It may
be entrusted for any shorter period ; and then it i etums
to them again, to be again delegated by a new choice.
^518. In the convention, which framed the consti-
tution of the United States, the first resolution adopted
by that bod}^ :^^t fh^^ ^: ^ natiqnal government ought
to be estabUs&^S^*c6nsQf^g']C^:a supreme legislative,
judiciary, and e^^u4t^f^::;And from this limdamental
proposition sprij^ i^^^ubset^u oi^anization of the
whole govemttiemJDt lA&*:tJi]ited States. It is, then,
our duty to examine and consumer the grounds^ on which
this proposition rests, since it lies at the bottom of all
our institutions, state, as weU as BatienaL
§ 519. In die establishment of a free goverameiit,
the division of the three great powers of government,
& Joornals of Convent. 83» 83, 139, 207, 315.
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cu« TuJ pisTRiBirrioir of powcms.
the executive, the legis]atiye» and the judicial^
different fuQctionaiies, has been a favorite policy with
patriots and statesmen* It has by many beea deemed
a maxim of vital importance, that these powen shoiikl
^ evw be kept separate and distinct. And according-
ly we find it laid down widi emphatic care in the biUof
rights of several of the state constitutions. In the con-
stitution of Massachusetts, ibr example, it is dedareci^
that ^^in the government of this commonwealth, the
legislative department shall never exercise die execu-
tive and judicial powers, or either of them ; the execu-
tive, shall never exercise the legislative and judicial
powers, or either of them ; the judicial shall nev^ ex-
ercise the legislative and Judicial powers, or either of
them ; to the end it may be a government of kuo$ and
not of men. " ^ Other declarations of a shnilar char-
acter are to be foimd in other state constitutions.*
^ 620. Montesquieu seems to have been the first, who^
with a truly philosophical eye, surveyed the political
truth involved in this maxim, in its fiiU extent^ and gave
to it a paramount importance and value. As it is tacitly
assumed, as a fundamental basis in the conatitutioii of
the United States, in the distribution of its powers, it
may be worth inquiry, what is the true nature, object,
I Bill of Rights; article 20.
* Tbe Federalist No. 47. — It has been remarked by Mr. J. Adanis, that
the practicability or the duration of a repul))icy in which there is a gov-
ernor, a senate, and a house of representatives, is doubted by Tacitus,
though he admits the theory to be laudable. Cunctas nationes et orbes
populus, aut priures, aut singuli regunt Delects ex his et constitata
reipublice forma laudari facilius quam inveniri, vel si evenit, haud
diutuma esse potest Tacit Ann. lib. 14. Cicero asserts, ** Statuo ease
optime constitutam rempublicam, que ex tribus generibus illis, regali,
Optimo, et populari, raodice confusa." Cic. Frag, de Repub.* The Brit-
ish government perhaps answers more nearly to the form of government
proposed by these writers, than what we in modem times should esteem
strictly a republic,
* 1 AduDB*! Amer. Ooniiitatuni, Preftoe, 19.
f r
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4 coir 8TITUTI0N OF THE U. STATES. [bOOK III.
and extent of the maxim, and of the reasoning, by which
it is supported. The remarks of Montesquieu on this
subject will be found in a professed commentary upon
the constitution of England.^ " When/' says he, " the
legislative and executive powers are united in the same
person, or in the same body of magistrates, there can be
HO liberty, because apprehensions may arise, lest the
same monarch or senate should enact tyrannical laws, to
execute them in a tyrannical manner. Again ; there is no
liberty, if the judiciary power be not separated from the
}egislative and executive. Were it joined with the
legislative, the life and liberty of the subject would be
exposed to arbitrary cpntrol ; for the judge would be
the legislator. Were it joined to the executive power,
the judge might behave with violence and oppression.
There would be an end of every thing, were the same
man, or the same body, whether of the nobles, or of the
people, to exercise these three powers, that of enactmg
laws, that of executing the public resolutions, and of
trying the causes of individuals.*' '
§ 521. The same reasoning is adopted by Mr. Justice
Blackstone, in his Commentaries.' ^^ In all tyrannical
goyemments,'* says he, " the supreme magistracy, or
jthe right both of making and of enforcing laws, is vest-
ed in the same man, or one and the same body pf men ;
.and wherever these two powers are united together,
1 MoDtesqaieu, B. 11, ch. 6.
s Mr. Turgot u^es the following strong longaage : ''The tyranny of
.the people is the most cruel and intolerable, because it leaves the fewest
reeources to the oppressed. A despot }s restrained by a sense of his own
interest He is checked by remorse or public opinion. But the mujti-
tade*ney^r calculate ; the multitude are never checked by renjorse, and
will even aspribe to themselves the hi^ghest honour, when they deserve
X)nly disgrace.^ Letter to Dr. Price.
' 1 filapk. Comm. 146,
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CH. Til.] DISTRIBUTION OF POWERS. 5
there can be no public liberty. The magistrate may
enact tyrannical laws, and execute them in a tyrannical
manner, since he is possessed, in quality of dispenser of
justice, with all the power, which he, as legislator, thinks
proper to give himselt But where the legislative and
executive authority are in distinct hands, the former will
take care not to entrust the latter with so large a power,
as may tend to the subversion of its own independence,
and therewith of the Uberty of the subject.'* Again ;
" In this distinct and separate existence of the judicial
power in a peculiar body of men, nominated, indeed,
by, but not removeable at, the pleasure of the crown,
consists one main preservative of the public liberty ;
which cannot long subsist in any state, unless the ad-
ministration of common justice be in some degree sep-
arated from the legislative, and also the executive pow-
er. Were it joined with the legislative, the life, Uberty,
and property of the subject would be in the hands of
arbitrary judges, whose decisions would then be regu-
lated only by their opinions, and not by any fundamen*
tal principles of law ; which, though legislators may
depart from, yet judges are bound to observe. Were
it joined with the executive, this unioii might soon be
an overbalance for the legislative.*' *
1 1 Black. Conam. 269. See 1 Wilson's Law Lectures, 394, 399, 400,
407,408,409; Woodeson's Elem. of Jurisp. 53, 56.— The remarks of
Dr. Paley, on the same subject, are full of his usual practical sense.
^The first maxim," says he, ^ of a free state is, that the laws be made
by one set of men, and administered by another ; in other words, that
the legislative and judicial characters be kept separate. When these
offices are united in the same person or assembly, particular laws
are made for particular cases, springing oftentimes from partial motives,
and directed to private ends. Whilst they are kept separate, general
laws are made by one body of men, without foreseeing whom they may
affect ; and, when made, they must be applied by the other, let them af>
feet whom they will.
^ For the sake of illustration let it be supposed, in this country, either
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6 CONSTITUTION OF THE U. STATES. [BOOK nu
^ 522. And the Federalist has, i^ith equal point and
brevity, remarked, that ^ the accumulation of all pow-
ers legislative, executive, and judiciary, in the same
hands, whether of one, a few, or many, and whether
hereditary, self-appointed, or elective, may be justly
pronounced the very definition of tyranny.*' ^
that, parliaments beitig laid aside, the courts of Westminster Hall made
their own laws ; or, that the two houses of parliament, with the king at
their head, tried and decided causes at their bar. It b ertdent, in tiie
first place, that the decisions of such u judicature would be so many
laws ; and, in the second place, that, when the parties and the interests
to be afiected by the laws were known, the inclinations of tlie law^mak*
eis would inevitably attach on one aide or the other ; and thai wheie
there were neither any fixed rules to regulate their determinatioDs, nor
any superior power to control their proceedings, these inclinations would
interfere with the integrity of public justice. The consequence of which
must be, that the subjects of such a constitution would lire either with-
out any constant laws, that is, without any known pre-established rules
of adjudication whatever ; or under laws made for particular persons,
and partaking of the contradictions and iniquity of the motiTes, to which
they owed their origin.
These dangers, by the division of the legislative and judicial functions,
are in this country effectually provided against Parliament knows not
the individuals, upon whom its acts will operate ; it has no eases or par*
ties before it ; no private deigns to serve : consequently, its resolutions
will be suggested by the consideration of universal effects and tenden-
cies, which always produce impartial, and commonly advantageous regu-
lations. When laws are made, courts of justice, whatever be the dispo-
sition of the judges, must abide by them ; for the legislative being
necessarily the supreme power of the state, the judicial and every other
power is accountable to that: and it cannot be doubted, that the persons,
who possess the sovereign authority of government, will be tenacious of
the laws, which they themselves prescribe, and sufficiently jealous of the
assumption of dispensing and legislative power by any others.** Paley's
Moral Philosophy, B. 6, ch. &
s The Federalist, No. 47; Id. No. 33. See also Gov. Randolph's
Letter, 4 Elliot's Deb. 133 ; Woodeson's Elem. of Jurisp. 53, 56. — Mr.
Jefferson, in his Notes on Virginia,* has expressed the same truth with
peculiar fervour and force. Speaking of the constitution of government
of his own state, he says, **all the powers of government, legislative
executive, and judiciary, result to the legislative body. The concen-
trating these in the same hands is precisely the definition of a despotic
• J«ffenMi*i NoUfl, p. 199.
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OIL TU.] DISTRIBUTION OF POWERS. 7
» ^ 523. The general reasoning, by which the maxim
is supported, independently of the just weight of the
authority m its support, seems entirely satis&ctory.
What is of far more value than any mere reasoning,
experience has demonstated it to be founded in a just
view of the nature of government, and the safety and
fiberty of the people. And it is no small commendation
of die constitation of the United States, that instead of
adopting anew theory, it has placed this practical truth,
as i^e basis of its organization. It has placed the legis-
lative, executive, and judicial powers in different hands.
It has, as we shall presently see, made their term of
office and their organization different ; and, for objects of
permanent and paramount importance, has given to the
judicial department a tenure of office during good be
|fo?enuDeat. It will be no allevkdoD, that these powers will bo exer-
ctsed by a plurality of haods, aod not by a single one. One hundred
and seventy-three despots would surely be as oppressive as one. Let
thoae^ wbo doubt it, torn their eyes on the republic of Venice. Aa elec-
tive deqx»tism is aot the government we fought for ; but one, which
should not only be founded on free principles, but in which the powers
of government should be so divided and balanced among several bodies of
nagistracy, as tint no one could transcend their legal limits without be-
ing effectually checked and restrained by the others " Yet Virginia
lived voluntarOy under this constitution more than fifly years;* and,
notwithstanding ^is solemn warning by her own favourito statesman, in
tb« recent nevinon of her old constitution and the formation of a new
one, she has not in this respect changed the po\¥ers of the government.
The legislature still remains with all its great powers.
^o person, however, has examined this whole subject more profbcmdly,
and with more illustrations from history and political philosophy, than
Mr. John Adams, in his celebrated Defence of the American Constitu-
tions. It deserves a thorough perusal by every statesman.
Milton was aai open advocate for concentrating all powers, legislative
and executive, in one body; and his opinions, as well as those of some
other men of a philosophical cast, are sufficiently wild and extravagant
to put US upon our guard against too much reliance on mere authority .f
• 8m a PitUn'i Hbt. 298, 999, 900.
t Sea 1 Adaiiia*! Da?. o7 Amer. Conat. 365 to 371.
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8 CONSTITUTION OF THE U. STATES. [bOOK III^
haviour ; while it has limited each of the others to a
term of years.
^ 524. But when we speak of a separation of the
three great departments of government, and maintain,
that that separation is indispensable to public liberty,
we are to understand this maxim in a limited senses
It is not meant to aflSrm, that they must be kept wholly *
and entirely separate and distinct, and have no common
link of connexion or dependence, the one upon the other,
in the slightest degree; The true meaning is, that
the whole power of one of these departments should
not be exercised by the same hands, which possess the
whole power of either of the other departments ; and
that such exercise of the whole would subvert the prin*
ciples of a free constitution. This has been shown vnth
great clearness and accuracy by the authors of the
Federalist.^ It was obviously the view taken of the
subject by Montesquieu and Blackstone in their Com-
mentaries ; for they were each speaking with approba*
tion of a constitution of government, which embraced
this division of powers in a general view ; but which, at
the same time, established an occasional mixture of each
with the others, and a mutual dependency of each upon
the others. The slightest examination of the British
constitution will at once convince us, that the legislative;
executive, and judiciary departments are by no means
totally distinct, and separate from each other. The
executive magistrate forms an integral part of the legis-
lative department ; for parliament consists of the king,
lords, and commons ; and no law can be passed except
by the assent of the king. Indeed, he possesses cer-
tain prerogatives, such as, for instance, that of making
foreign treaties, by which he can, to a limited extent,
1 The Federalist, No. 43.
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CH. VII.] BiSTRiBtmoir or powjgrs. 9
impart to them a legislative force and operation. He
also possesses the sole appointing power to the judicial
department, though the judges, when once appcnnted,
are not subject to his will, or power of removal The
house of lords also constitutes, not only a vital and in-
dependent branch of the legislature, but is also a great
constitutional council of the executive magistrate, and
is, in the last resort, the highest appellate judicial tribu*
naL Again; the other branch of the legislature, the
commons, possess, in some sort, a portion of the execu-
tive and judicial power, in exercising the power* of
accusation by impeachment ; and in this case, as also in
the trial of peers, the house of lords sits as a grand court
of trials for public oflfences. The powers of the judi-
ciary department are, indeed, more narrowly confined to
theu' own proper sphere. Yet still the judges occasionally
assist in the deliberations of the house of lords by giv*
ing their opinions upon matters of law referred to them
for advice ; and thus they may, in some sort, be deemed
assessors to the lords in their legislative, as well as judi*
cial capacity.^
^ 525. Mr. Justice Blackstone has illustrated the
advantages of an occasional mixture of the legislative
and executive functions in the English constitution in
a strikmg manner. " It is highly necessary,*' says he,
*'for preserving the balance of the constitution, that the
executive power should be a branch, though not the
whde of the legislative. The total union of them, we
have seen, would be productive of tyranny. The total
disjunction of them, for the present, would, in the end,
produce the same effects by causmg that union, against
wluch it seems to provide. The legislative would soon
1 The Federalist, No. 47; De Lolme on the English Constitution, B.
3,ch.a
VOL. II. 2
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10 CONSTITUTION OF THE U. STATES. [BOOK IIL
become tyrannical by making continual encroachments,
and gradually assuming to itself the rights of the execu-
tive power, &c. To hinder, therefore, any such
encroachments, the king is, himself, a part of the parlia-
ment ; and, as this is the reason of his being so, very
properly, therefore, the share of legislation, which the
constitution has placed in the crown, consists in the
power of rejecting^ rather than resolving ; this being
sufficient to answer the end proposed. For we may
apply to the royal negative, in this instance, what Cice-
ro ^observes of the negative of the Roman tribunes,
that the crown has not any power of domg wrong ; but
merely of preventing wrong from being done. The
crown cannot begin of itself any alterations in the pres-
ent established law ; but it may approve, or disapprove
of the alterations suggested, and consented to by the
two houses,*' ^
§ 526. Notwithstanding the memorable terms, in
which this maxim of a division of powers is mcorporat-
ed into the bill of rights of many of our state constitu-
tions, the same mixture will be found pro\ided for, and
indeed required in the same solemn instruments of gov-
ernment. Thus, the governor of Massachusetts exer-
cises a part of the legislative power, possessing a quali-
fied negative upon all laws. The house of representa-
tives is a grand mquest for accusation ; and the senate
is a high court for the trial of impeachments. The gov-
ernor, with the advice of the executive council, pos-
sesses the power of appointment in general ; but the
appointment of certain officers still belongs to the sen-
ate and house of representatives. On the other hand,
although the judicial department is distmct from the
1 1 Black. Comm. 154.
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CH. Til.] DISTRIBITTIOir OF POWERS. 1 1
executive and legislative in many respects, either branch
may require the advice of the judges, upon solemn
questions of law referred to them. The same general
division, with the same occasional mixture, may be found
m the constitutions of other states. And in some o(
them the deviations from the stiict theory are quite re-
markable. Thus, until the late revision, the constitu-
tion of New- York constituted the governor, the chan-
cellor, and the judges of the Supreme Court, or any
two of them with the governor, a councU of revision,
which possessed a qualified negative upon all laws pass-
ed by the senate and house of representatives. And,
now, the chancellor and the judges of the Supreme
Court of that state constitute, with the senate, a court
of impeachment, and for the correction of errors. In
New-Jersey the governor is appointed by the legisla-^
ture, and is the chancellor and ordinary, or surrogate, a
member of the Supreme Court of Appeals, and presi-
dent, with a casting vote, of one of the branches of the
legislature. In Virginia the great mass of the s^point-
ing power is vested in the legislature. Indeed, there
is not a single constitution of any state in the Union,
which does not practically embrace some acknowledg-
ment of the maxim, and at the same time some admix-
ture'of powers constituting an exception to it.*
^ 627. It would not, perhaps, be thought unportant
to have dwelt on this subject, if originally it had not
been made a special objection to the constitution of the
United States, that though it professed to be founded
upon a division of the legislative, executive, and judi-
cial departments, yet it was really chargeable with a
departure from the doctrine by acciunulating m some
1 Tbe Federalist, No. 47, 4a
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12 CONSTITUTION OF THE U* STATES. [BOOK III.
instances the diflferent powers in the same hands, and
by a mixture of them in others ; so, that it, in effect,
subverted the maxim, and could not but be dangerous
to the public liberty.^ The fact must be admitted, that
such an occasional accumulation and mixture exists ;
but the conclusion, that the system is therefore danger-
ous to the pubhc liberty, is wholly inadmissible. If the
objection were well founded, it would apply with equal,
and in some cases with far greater force to most of our
state constitutions; and thus the people would be
proved their own worst enemies, by embodying in their
own constitutions the means of overthrowmg their lib-
erties.
^ 628. The authors of the Federalist thought this
subject a matter of vast importance, and accordingly
bestowed upon it a most elaborate commentary. At
the present time the objection may not be felt, as pos-
sessing much practical force, smce experience has de-
monstrated the fallacy of the suggestions, on which it
was founded. But, as the objection may be revived ;
and as a perfect separation is occasionally found sup-
ported by the opinions of ingenious minds, dazzled by
theory, and extravagandy attached to the notion of
simplicity m government, it may not be without use to
recur to some of the reasoning, by which those illustri-
ous statesmen, who formed the constitution, while they
admitted the general truth of the maxim, endeavoured
to prove, that a rigid adherence to it in all cases would
be subversive of the eflSciency of the government, and
result in the destruction of the public liberties. The
proposition, which they undertook to maintain, was this,
that ^^imless these departments be so far connected and
blended, as to give to each a constitutional control over
1 1 Amer. Museum, 536, 549, 550 ; Id. 553 ; 3 Amer. Museum, 78, 79.
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CH. VII.] DISTRIBUTION OF POWERS. 13
the others, the degree of separation, which the maxim
requires, as essential to a free government, can never
m practice be duly maintained." *
§ 629. It is proper to premise, that it is agreed on
all sides, that the powers belonging to one departme'ht
ought not to be directly and completely administered
by either of the other departments ; and, as a corollary,
that, in reference to each other, neither of them ought
to possess, direcdy or mdirectiy, an overruling influence
in the administration of their respective powers.* Power,
however, is of an encroaching nature, and it ought to
be effectually restrained from passing the limits assign-
ed to it Having separated the three great depart-
ments by a broad line from each other, the difficult
task remains to provide some practical means for the
security of each against the meditated or occasional in-
vasions of the others. Is it sufficient to declare on
parchment in the constitution, that each shall remain,
and neither shall usurp the functions of the other? No
one, well read in history in general, or even in our own
history durmg the period of the existence of our state
constitutions, will place much reliance on such declara-
tions. In the first place, men may and will differ, as to
the nature and extent of the prohibition. Their wishes
and their mterests, the prevalence of faction, an appa-
rent necessity, or a predominant popularity, will give a
strong bias to their judgments, and easily satisfy them
with reasoning, which has but a plausible colouring.
And it has been accordingly found, that the theory has
bent under the occasional pressure, as well as under the
occasional elasticity of public opinion, and as well in the
states, as in the general government under the confed-
1 The Federalist, No. 48. « The Federalist, No. 48.
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14 OONSTITUTIOK OF THE U. STATES. [bOOK HI*
eration. Usurpations of power have been notoriously
assumed by particular departments in each ; and it has
often happened, that these very usurpations have re-
ceived popular favour and indulgence,^
•§ 630. In the next place, in order to preserve m full
vigour the constitutional barrier between each depart-
ment, when they are entirely separated, it is obviously
mdispensable, that each should possess equally, and in
the same degree, the means of self-protection. Now,
m point of theory, this would be almost impracticable,
if not impossible ; and in pomt of fact, it is well known,
that the me^s of self-protection in the different depart-
ments are immeasurably disproportionate. The judi-
ciary is mcomparably the weakest of either ; and must
for ever, in a considerable measure, be subjected to the
legislative power. And the latter has, and must have,
a controlling influence over the executive power, since
it holds at its own command all the resources, by which
a chief magistrate could make hunself formidable. It
possesses the power over the purse of the nation, and
the property of the people. It can grant, or withhold
supplies ; it can levy, or withdraw taxes ; it can un-
nerve the power of the sword by striking down the
arm, which wields it.
§ 531. De Lolme has said, with great emphasis, '^It
is, without doubt, absolutely necessary for securing the
constitution of a state, to restrain the executive power ;
but it is still more necessary to restrain the legislative.
What the former can duly do by successive steps,
(I mean subvert the laws,) and through a longer, or a
shorter tradn of enterprises, the latter does in a moment
As its bare will can give being to the laws, so its bare
1 The Federalist, No. 48. See also Tbe Federalist, No. 38, 42.
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CH. til] distribution of powers. 16
will can also annihilate them ; and if I may be permit-
ted the expression, the legislative power can change
the constitution, as God created the light In order,
therefore, to insure stability to the constitution of a
state, it is indispensably necessary to restrain the legis-
lative authority. But, here, we must observe a diflfer-
ence between the legislative and executive powers.
The latter may be confined, and even is more easily so,
when undivided. The legislative, on the contrary, in
order to its being restrained, should absolutely be di-
vided.''*
§ 532. The truth is, that the legislative power is the
great and overruling power in every fi^e government
It has been remarked with equal force and sagacity,
that the legislative power is every where extending the
sphere of its activity, and drawing all power into its
impetuous vortex. The founders of our republics, wise
as they were, under the influence and the dread of the
royal prerogative, which was pressing upon them, never
for a moment seem to have turned their eyes from the
immediate danger to liberty from that source, combined,
as it was, with an hereditary authority, and an heredi-
tary peerage to support it They seem never to have
recollected the danger from legislative usurpation, which,
by ultimately assembling all power in the same hands,
must lead to the same tyranny, as is threatened by ex*-
ecutive usurpations. The representatives of the people
will watch with jealousy every encroachment of the
executive magistrate, for it trenches upon their own
authority. But, who shall watch the encroachment of
these representatives themselves? Will they be as
jealous of the exercise of power by themselves, as by
1 De Ldme, B. 2, ch. a
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16 CONSTITUTION OF THE U. STATES* [bOOK III,
Others 1 In a representative republic, where the ex-
ecutive magistracy is carefully limited, both in the ex-
tent and duration of its power ; and where the legisla-
tive power is exercised by an assembly, which is in-
spired, by a supposed influence over the people, with
an intrepid confidence in its own strength ; which is
sufficiently numerous to feel all the passions, which ac-
tuate the multitude ; yet not so numerous, as to be in-
capable of pursuing the objects of its passions by means,
which reason prescribes ; it is easy to see, that the
tendency to the usurpation of power is, if not constant,
at least probable ; and that it is against the enterprising
ambition of this department, that the people may weU
indulge all their jealousy, and exhaust all their precau-
tions.^
§ 533, There are many reasons, which may be as-
signed for the engrossing influence of the legislative
department. In the first place, its constitutional pow-
ers are more extensive, 'and less capable of being
brought within precise limits, than those of either of the
other departments. The bounds of the executive
authority are easily marked out, and defined. It reaches
few objects, and those are known. It cannot transcend
them, without being brought in contact with the other
departments. Laws may check and restrain, and bound
its exercise. The same remarks apply with still greater
force to the judiciary. The jurisdiction is, or may be,
bounded to a few objects or persons; or, however
general, and unlimited, its operations are necessarily
confined to the mere administration of private and pub-
lic justice. It cannot punish without law. It cannot
create controversies to act upon. It can decide only
I The Federalist, No. 48, 49.
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CH. VII.] DISTRIBUTION OF P0W£R8. 17
upon rights and cases, as they are brought by others be-
fore it. It can do nothmg for itself. It must do every
thing for others. It must obey the laws ; and if it cor-
ruptly administers them, it is subjected to the power of
impeachment On the other hand, the legislative power,
except in the few cases of constitutional prohibition, is
unlimited. It is for ever varying its means and its ends.
It governs the institutions, and laws, and public policy
of the coimtry. It regulates all its vast mterests. It dis-
poses of all its property. Look but at the exercise of
two or three branches of its ordinary powers. It levies
all taxes ; it directs and appropriates all supplies ; it
gives the rules for the descent, distribution, and de-
vises of all property held by individuals. It contrds
the sources and the resources of wealth. It changes
at its will the whole fabric of the laws. It moulds at its
pleasure ahnost all the institutions, which give strength,
and comfort, and dignity to society.
§ 534. In the next place, it is the direct, visible rep-
resentative of the will of the people in all the changes
of times and circumstances. It has the pride, as well
as the power of numbers.* It is easUy moved and
steadily moved by the strong impulses of popular feel-
ing, and popular odium. It obeys, without reluctance,
the wishes and the will of the majority for the time
being. The path to public favour lies open by such
obedience ; and it finds not only support, but impimity,
in whatever measures the majority advises, even
though they transcend the constitutional limits. It has
no motive, therefore, to be jealous, or scrupulous in its
own use of power ; and it finds its ambition stimulated,
1 ''.Numerous assembHes," says Mr. Turgot, ** are swayed in tbeir de-^
bates by Uie smallest motives."
VOL. II. 3
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16 CONSTITUTION OF THE U. STATES. [bOOK III,
and its arm strengthened by the countenance, and the
courage of numbers. These views are not alone those
of men, who look with apprehension upon the fate of
republics ; but they are also freely admitted by some
of the strongest advocates for popular rights, and the
permanency of republican institutions.^ Our domestic
history furnishes abundant examples to verify these
suggestions.'
§ 635. If, then, the legislative power possesses a
decided preponderance of influence over either or
both of the others ; and if, in its own separate struc-
ture, it furnishes no effectual security for the others, or
for its own abstinence from usurpations, it will not be
sufficient to rely upon a mere constitutional division of
the powers to insure our liberties.*
§ 636. What remedy, then, can be proposed, ade-
quate for the exigency? It has been suggested, that
an appeal to the people, at stated times, might redress
any inconveniences of this sort. But, if these be fre-
quent, it will have a tendency to lessen that respect
for, and confidence in the stability of our constitutions,
which is so essential to their salutary influence. If it
be true, that all governments rest on opmion, it is no
less true, that the strength of opinion in each individ-
ual, and its practical influence on his conduct, depend
much upon the number, which he supposes to have
entertained the same opinion.^ There is, too, no small
danger in disturbing the public tranquillity by a fre-
1 See Mr. Jefferson's very striking remarks in his Notes on Virginia^
p. 195, 196, 197, 248. In December, 1776, and again, June, 1781, the
legislature of Virginia, under a great pressure, were near passing an
act appointing a dictator. lb. p. 207.
« The Federalist, No. 48, 49.
3 See Jefferson's Notes on Virginia, 195, 196, 197.
^ The Federalist, No. 48.
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CH. VII.] DISTRIBUTION OF POWERS. 10
queht recurrence to questions respecting the funda-
mental principles of government.* Whoever has been
present in any assembly, convened for such a purpose,
must have perceived the great diversities of opinion
upon the most vital questions ; and the extreme diffi-
culty in bringing a majority to concur in the long-
sighted wisdom of the soundest provisioAS* Tempo-
rary feelings and excitements, popular prejudices, an
ardent love of theory, an enthusiasdc temperament,
mexperience, and ignorance, as well as preconceived
opinions, operate wonderfully to blind the judgment,
and seduce the understanding. It v^ill probably be
foimd, in the history of most convendons of this sort,
that the best and soundest parts of the constitution,
those, which give it permanent value, as well as safe
and steady operation, are precisely those, which have
enjoyed the least of the public favour at the moment,
or were least estimated by the framers. A lucky hit,
or a strong figure, has not imfrequently overturned the
best reasoned plan. Thus, Dr. Franklin's remark,
that a legislature, vnth two branches, was a wagon,
drawn by a horse before, and a horse behind, in oppo-
site directions^ is understood to have been decisive in
inducing Pennsylvania, m her original constitution, to
invest all the legislative power in a single body.* In
her present constitution, that error has been fortimately
corrected. It is not believed, that the clause m the
constitution of Vermont providing for a septennial
council of celisors to mquire mto the infractions of her
constitution during the last septenary, and to recom-
mend suitable measures to the legislature, and to call^
1 The Federalist, No. 48, 50.
s 1 Adams's American ConstitatioDS, 105, 106.
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20 coifSTiTirrioif of the u. states, [book hi.
if they see fit, a conyention to amend the constitution,
has been of any practical advantage in that state in
securing it against legislative or other usurpations,
beyond the security possessed by other states, having
no such provision.*
§ 537. On the other hand, if an appeal to the people,
or a convention, is to be called only at great distances
of time, it will afford no redress for the most pressing
mischiefs. And if the measures, which are supposed
to be infractions of the constitution, enjoy popular
favour, or combine extensive private interests, or have
taken root in the habiteof the government, it is obvious,
that the chances of any effectual redress will be essen-
tially diminished.'
^ 538. But a more conclusive objection is, that the
decisions upon all such appeals would not answer the
purpose of miuntaining, or restoring the constituticmal
equilibrium of the government The remarks of the
Federalist, on this subject, are so striking, that they
scarcely admit of abridgment without impairing their
force : " We have seen, that the tendency of repub-
^lican governments is to aggrandizement of the legis-
**lature at the expense of the other departments. The
*< appeals to the people, therefore, would usually be
**made by the executive and judiciary departments.
•*But whether made by one or the other, would each
^side enjoy equal advantages on the trial? Let us
**view their different situations. The members of the
** executive and judiciary departments are few in num-
^ber, and can be personally known to a small part
^ The hiitory of the former constitution of Pennsylvania, and the
report of its council of censon, shows the little value of provisions of
this sort in a strong light The Federalist, No. 48, 50.
8 The Federalist, No. 50.
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CH. Til.] piSTRIBUTIOV OF POWERS. 21
**only^of Ac people. The latter, by the mode of their
^appointment, as well as by the nature and perma-
"nency of it, are too far removed fix)m the people to
^ share much in their professions. The former are
** generally objects of jealousy ; and their administra-
^ tion is aJways liable to be discoloured and rendered
•^unpqpular. The members of the legislative depart-
**ment, on the other hand, are numerous. They are
^distributed and dwell among the people at large.
^ Their connexions of blood, of friendship, and of
^acquamtance, embrace a great proportion of the most
"influential part of the society. The nature of their
** public trust implies a personal weight with the peo-
"ple, and that they are more immediately the confi-
"dential guardians of their rights and liberties. With
* these advantages it can hardly be supposed, that the
^adverse party would have an equal chance of a favour-*
^able issue. But the legislative party would not only
•*be able to plead their case most successfully with the
** people; they would probably be constituted them-
" selves the judges. The same mfluence, which had
"gamed them an election into the legislature, would
" gain them a seat in the convention. If this should
" not be the case with all, it would probably be the
"case with many, and pretty certamly widi those
"leading characters, on wh6m every thing depends in
"such bodies. The convention, in short, would be
"composed chiefly of men, who had been, or who
" actually were, or who expected to be, members of the
"department, whose conduct was arraigned. They
"would consequently be parties to the very ques-
" tion to be decided by them.*' ^
1 The Federalist, No. 48. — The trath of this reasonine^, aa well aa
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22 CONSTITUTION Or THE U. STATES. [BOOK III.
§ 539. I^ then, occasional or periodical appeals to
the people would not aflFord an eflFectual barrier against
the inroads of the legislature upon the other depart-
ments of the government, it is manifest, that resort
must be had to some contrivances in the interior struc-
ture of the government itself, which shall exert a con-
stant check, and preserve the mutual relations of each
with the other. Upon a thorough examination of the
subject, it will be found, that this can be best accom-
plished, if not solely accomplished, by an occasional
mixture of the powers of each department with that of
the others, while the separate existence, and constitu-
tional independence of each are fully provided for.
Each department should have a will of its own, and
the members of each should have but a limited agency
in the acts and appointments of the members of the
others. Each should have its own independence
secured beyond the power of being taken away by
either, or both of the others. But at th« same tune the
relations of each to the other should be so strong, that
there should be a mutual interest to sustain and pro-
tect each other. There should not only be constitu-
tional means, but personal motives, to resist encroach-
ments of one, or either of the others. Thus, ambidon
would be made to counteract ambition ; the desire of
power to check power ; and the pressure of interest to
balance an opposing mterest.^
§ 540. There seems no adequate method of pro-
ducing this result but by a partial participation of each
the utter inefficacy of any tnich periodical conveDtions, is abundantly
established by the history of Pennsylvania under her former constitu-
tion.*
1 The Federalist, No. 48, 50, 51.
* Tho Fedenliit, No. 60. 8M3PitkiB'iHift.305,306.
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CH. rn.] DISTRIBUTION OF POWERS. 23
in the powers of the other ; and by introducing into
every operation of the government m all its branches^
a system of checks and balances, on which the safety
of free institutions has ever been found essentially to
depend. Thus, fot instance, a guard against rashness
and violence in legislation has often been found, by dis-
tributing the power among different branches, each
having a negative check upon the other. A guard against
the inroads of the legislative power upon the execu-
tive has been in like manner applied, by giving the lat-
ter a qualified negative upon the former ; and a guard
against executive influence and patronage, or unlawful
exercise of authority, by requiring the concurrence of
a select council, or a branch of the legislature in ap-
pointments to office, and in the discharge of other high
functions, as well as by placing the command of the
revenue in other hands. '
^ 541. The usual guard, applied for the security of
the judicial department, has been m the tenure of
office of the judges, who commonly are to hold office
during good behaviour. But this is obviously an mad-
equate provision, while the legislature is entrusted with
a complete power over the salaries of the judges, and
over the jurisdiction of the courts, so that they can
alter, or diminish them at pleasure. Indeed, the judi-
ciary is naturally, and almost necessarily (as has been
already said) the weakest department* It can have
no means of influence by patronage. Its powers can
never be wielded for itself. It has no command over
the purse or the sword of the nation. It can neither lay
taxes, nor appropriate money, nor command armies, or
appoint to offices. It is never brought into contact
1 Montesq. Spirit of Laws, B. II, ch. 6.
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24 CONSTITUTION OF THE U. STATES. [bOOK III.
with the people by the constant appeals and solicita-
tions, and private mtercourse, which belong to all the
other departments of government It is seen only in
controversies, or in trials and punishments. Its rigid
justice and impartiality give it no claims to favour,
however they may to respect. It stands solitary and
unsupported, except by that portion of public opinion,
wUch is interested only in the strict administration of
justice. It can rarely secure the sympathy, or zealous
support, either of the executive, or the legislature. If
they are not (as is not unfrequently the case) jealous
of its prerogatives, the constant necessity of scrutiniz-
ing the acts of each, upon the application of any private
person, and the painful duty of pronouncing judgment,
that these acts are a departure from the law or consti- •
tution, can have no tendency to conciliate kindness, or
nourish influence. It would seem, therefore, that some
additional guards would, under such circumstances, be
necessary to protect this department jrom the absolute
dominion of the others. Yet rarely have any such
guards been applied ; and every attempt to introduce
them has been resisted with a pertinacity, which de-
monstrates, how slow popular leaders are to introduce
checks upon their own power ; and how slow the peo*
pie are to believe, that the judiciary is the real bulwark
of their liberties. In some of the states the judicial
department is partially combined with some branches
of the executive and legislative departments ; and it b
believed, that in those cases, it has been foxmd no
unimportant auxiliary in preserving a wholesome vig-
our in the laws, as well as a wholesome administration
of public justice.
^ 542. How far the constitution of the United States,
in the actual separation of these departments, and the
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CH. rih] DISTRIBUTION OF POWSRS. 85
occasional mixtures of some of the powers of each, haa
accomplished the objects of the great maxim, which we
have been considering, will appear more fully, when a
survey is taken of the particular powers confided to
each department. But the true and only test must,
after all, be experience, which corrects at- once the
errors of theory, and fortifies and illustrates the eternal
judgments of nature.
^ 543. It is not a little singular, however, (as has
been already stated,) that one of the principal objec-
tions urged against the constitution at the time of its
adoption was this occasional mixture of powers,* upon
which, if the preceding reasoning (drawn, as must be
seen, from the ablest commentators) be well founded,
it must depend for life and practical influence. It was
said, that the several departments of power were dis-
tributed, and blended in such a manner, as at once to
destroy all symmetry and beauty of form ; and to
expose some of the essential parts of the edifice to the
danger of being crushed by the disproportionate weight
of the other parts. The objection, as it presents itself
in details, will be more accurately examined hereafter.
But it may here be said, that the experience of more
than forty years has demonstrated the entire safety o(
this distribution, at least in the quarter, where the ob-
jection was supposed to apply with most force. If
any department of the government has an undue influ-
ence, or absorbing power, it certainly has not been
either the executive or judiciary.
1 The Federalist, No. 47 ; Id. 38.
VOL. II. 4
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26 COIC45TlTUTlblC OF THE V. STATES. [BOOK III.
CHAPTER VIII.
THE LEGISLATURE.
§ 544. The first article of the constitution contains
the structure, organization, and powers, of the legisla-
ture of the Union. Each section of that article, and in-
deed, of every other article, will require a careful analy-
sis, and distinct examination. It is proposed, therefore,
to bring each separately under review, in the present
commentaries, and to unfold the reasons, on which
each is founded, the objections, which have been urged
agsdnst it, and the interpretation, so far as it can sat-
isfactorily be ascertained, of the terms, in which each is
expressed.
§ 545. The first section of the first article is in the fol-
lowmg words : " All legislative powers herein granted
"shall be vested inacongress of the United States, which
** shall consist of a senate and house of representatives.**
^ 546. This section involves, as a fundamental rule,
the exercise of the legislative power by two distinct
and independent branches. Under the confederation,
the whole legislative power of the Union was vested in
a single branch. Limited as was that power, the con-
centration of it in a single body was deemed a prom-
inent defect of the confederation. But if a single assem-
bly could properly be deemed a fit receptacle of the
slender and fettered authorities, confided to the federal
government by that instrument, it could .scarcely be
consistent with the principles of a good government to
entrust it with the more enlarged^ai^d vigorous pow-
ers delegated in the constitution.*
1 The Federalist, No. 22.
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CH. viil] the legislature. SS7
§ 547. The utility of a subdivision of the legislatiye
power into different branches, having a negative upon
each other, is, perhaps, at the present time admitted
by most persons of sound reflection.^ But it has not
always found general approbation ; and is, even now,
sometimes disputed by men of speculative ingenui*
ty, and recluse habits. It has been justly observed^
that there is scarcely in the whole science of politics a
more important maxim, and one, which bears with
greater influence upon the practical operations of gov-'
emment. It has been already stated, that Pennsylvania,
in her first constitution, adopted the scheme of a sin^e
body, as the depositary of Ae legislative power, under
the influence, as is understood, of a mind of a very
high philosophical character.^ Georgia, also, is said in
her first constitution, (since changed,) to have confided
the whole legislative power to a single body.' Vermont
adopted the same course, giving, however, to the exec-
utive council a power of revision, and of proposing
amendments, to which she yet adheres.^ We are ajso
told by a distinguished statesman of great accuracy and
leammg, that at the first formation of our state consti-
tutions, it was made a question of transcendant unport-
ance, and divided the opinions of our most eminent
men. Legislation, being merely the expression of the
will of the community, was thought to be an operation
so simple in its nature, that inexperienced reason could
not readily perceive the necessity of committing it to
* Jefferson's Notes on Virginia, 194 ; 1 Kent's Comm. 208 ; DeLolme
on the Constitution of England, B. 2, ch. 3 ; 3 Amer. Museum, 62, 66,
Gov. Randolph's Letter.
« 1 Adams's Defence of American Constitution, 105,106 ; 2 PKk. Hist
294,305,316.
9 1 Kent's Comm. 206 ; 2 Pitk. Hist 315.
4 2 Pitk. Hist 314, 316; Const of Vermont, 1793, ch. 2, § 2, 16.
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SB CONSTITUTION OF THE U. STATES. [bOOK UI.
two bodies of men, each having a decisive check upon
the action of the other. All the arguments derived from
the a&alogy between the movements of political bod-
ies, and the operations of physical nature ; all the im-
pulses of political parsimony ; all the prejudices against
a second co-ordinate legislative assembly stimulated
by the exemplification of it in the British parliament,
were against a division of the legislative power.^
^ 548. It is also certain, that the noiion, that the
legislative power ought to be confided to a single body,
has been» at various times, adopted by men eminent
fior thek* talents and virtues. MUton, Turgot, Franklin,
are but a few among those, who have professedly en-
tertained, and discussed the question.^ Sir James
Mackintosh, in a woik of a controversial character, writ-
ten with the zeal and eloquence of youth, advocated the
doctrme of a single legislative body.' Perhaps his ma-
turer life may have changed this early opinion. At all
events, he can, in our day, count few foUowers. Against
his opinbn, thus uttered, there is the sad example of
France itself, 'whose first constitution, in 1791, was
formed on this basis, and whose proceedings the genius
of this great man was employed to vindicate. She
stands a monument of the folly and mischiefs of the
scheme ; and by her subsequent adoption of a division
of the legislative power, she has secured to herself (as
it is hoped) the permanent blessings of liberty.^ Against
all visionary reasoning of this sort, Mr. Chancellor Kent
1 President J. Q. Adams's Oration, 4th July, 1831. See also Adams's
Defence of AmeAcan Constitution, per iot ; 1 Kent's Coram. 208, 209,
210 ; 2 Pitk. Hist 233, 305 ; Paley's Moral Phil. B. 6, ch. 7.
9 1 Adams's Defence American Constitution, 3 ; Id. 105 ; Id. 366 ;
2 Pitk. Hist. 233.
3 Mackintosh on the French Revoludon, (1792) 4 edit p. 265 to 273.
4 1 Kent's Comm. 209, 210.
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CH. VIII.] THE LEGISLATURS. 89
has, in a few pages of pregnant sense and brevity, con*
densed a decisive argument^ There is danger, however,
that it may hereafter be revived ; and indeed it is occa-
sionally hinted by gifted minds, as a problem yet wor-
thy of a fuller trial*
^ 649. It may not, therefore, be uninstrucdve to re-
view some of the principal arguments, by which this
division is vindicated. The first and most important
ground is, that it forms a great check upon undue, hasty,
and oppressive legislation. Public bodies, like private
persons, are occasionally under the dominion of strong
passions and excitements ; impatient, irritable, and im-
petuous. The habit of acting together produces a
strong tendency to what, for want of a better word, may
be called the corporation spirit, or what is so happily
expressed in a foreign phrase, P esprit du corps. Certain
popular leaders often acquire an extraordinary ascen-
dency over the body, by their talents, their eloquence,
their intrigues, or their cunning. Measures are often
introduced in a huiry, and debated with little care, and
examined with less caution. The very restlessness of
many minds produces an utter impossibility of debat-
ing with much deliberation, when a measure has a plau-
sible aspect, and enjoys a momentary favour. Nor is
it infrequent, especially in cases of this sort, to over-
look well-founded objections to a measure, not only
because the advocates of it have little desire to bring
them in review, but because the opponents are often
seduced into a credulous silence. A legislative body is
not ordinarily apt to mistrust its own powers, and far
1 1 Kent's Coram. 208 to 210.
8 Mr. Tucker, the learned author of the Commentaries on Blackstone,
seems to hold the doctrine, that a division of the legislative power la not
useful or important See Tuck. Black. Como. App. 226, 227.
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so CONSTITUTION OP THE U. STATES. [bOOK IH.
less the temperate exercise of those powers. As it
prescribes its own rules for its own deliberations, it
easily relaxes them, whenever any pressure is made for
an immediate decision. If it feels no check but its own
will, it rarely has the firmness to insist upon holding a
question long enough under its own view, to see and
mark it in all its bearings and relations on society.^
§ 550. But it is not merely inconsiderate and rash
legislation, which is to be guarded against, in the ordi-
nary course of things. There is a strong propensity in
public bodies to accumulate power in their own hands,
to vnden the extent of their own influence, and to ab-
sorb within their own circle the means, and the motives
of patronage. If the whole legislative power is vested
m a single body, there can be, practically, no restraint
upon the fullest exercise of that power ; and of any
usurpation, which it may seek to excuse or justify,
either from necessity or a superior regard to the public
good. It has been often said, that necessity is the plea
of tyrants ; but it is equally true, that it is the plea of all
public bodies invested with power, where no check ex-
ists upon its exercise.* Mr. Hume has remarked with
* 1 1 Kent's Comm. 206, 209 ; 3 Amer. Museum, 66.
9 The facility, with which even great men satisfy themselves with ex-
ceeding their constitutional powers, was never better exemplified, than
by Mr. Jefferson's own practice and example, as stated in his own cor-
respondence. In 1802, he entered into a treaty, by which Louisiana was
to become a part of the Union, although (as we have seen) in his own
opinion, it was unconstitutional.* And, in 1810, he contended for the
right of the executive to purchase Flori^m if, in his own opiuion, the op-
portunity would otherwfee be lost, notwithstanding it might involve a
transgression of the law.f Such are the examples given of a state neces-
sity, which is to supersede the constitution and laws. Such are the
principles, which he contended, justified him in an arrest of persons not
sanctioned bylaw.|
♦ 4 Jeffenon*s Gorresp. 1, 9, 3, 4. f W. 149, 150. % Id- 151-
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CH. VIII.] THE LEGISLATURE. 31
great sagacity, that men are generally more honest in
their private, than in their public capacity ; and wiU go
greater lengths to serve a party, than when their own
private interest is alone concerned. Honour is a great
check upon mankind. But where a considerable body
of men act together, this check is in a great measure
removed, since a man is sure to be approved of by hia
own party, for what promotes the common interest ;
and he soon learns to despise the clamours of adversa-
ries.* This is by no means an opinion peculiar to Mr.
Hume. It will be found lying at the foundation of the
political reasonings of many of the greatest men in all
ages, as the result of a close survey of the passions, and
infirmaties, of the history, and experience of mankind.'
With a view, therefore, to preserve the rights and lib-
erties of the people against unjust encroachments, and
to secure the equal benefits of a free constitution, it is
of vital importance to interpose some check against the
undue exercise of the legislative power, which in every
government is the predominating, and almost irresist-
ible power.*
§ 551. This subject is put in a very strong light by
an eminent writer,^ whose mode pf reasoning can be
1 1 Hume's Essays, Essay 6 ; Id. Essay 16. — Mr. Jefferson has said,
that " the functionaries of public power rarely strengthen in their dis-
positions to abridge it" 4 Jefferson's Corresp. 277.
9 See 1 Adams's Defence of American Constitution, p. 121, Letter 26,
Slc. ; Id. Letter, 24 ; Td. Letter 55 ; 1 Hume's Essays, Essay IG ; 1 WU-
son's Lawl^ect 394 to 397 ; 3 Adamses Defence of American Constitution,
Letter 6, p. 209, &c.
3 Mr. Hume's thoughts ore often striking and convincing ; but his
mode of a perfect commonwealth * contains some of the most extrava-
gant vagaries of the human mind, equalled only by Locke's Constitution
for Carolina. These examples show the danger of relying implicitly
upon the mere speculative opinions of the wisest men. «
^ Mr. John Adams.
* 1 Home's Emayt, Enay 16.
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32 CONSTITUTION OF THE U. STATES. [BOOK III.
best conveyed in his own words. " If,'* says he, ** we
should extend our candour so far, as to own, that the
majority of mankind are generally under the dominion
of benevolence and good intentions ; yet it must be
confessed, that a vast majority frequently transgress ;
and what is more decidedly in point, not only a major-
ity, but almost all, confine their benevolence to their
families, relations, personal friends, parish, village, city,
county, province ; and that very few indeed extend it
impartially to the whole community. Now, grant but
thip truth, and the question is decided. If a majority
are capable of preferring their own private interests, or
that of their families, counties, and party, to that of the
nation collectively, some provision must be made in
the constitution in favour of justice, to compel all to re-
spect the common right, the public good, the universal
law in preference to all private and partial considera-
tions.'* ^ Again : " Of all possible forms of government,
a sovereignty in one assembly, successively chosen by
the people, is, perhaps, the best calculated to facilitate
the gratification of self-love, and the pursuit of the pri-
vate interests of a few individuals. A few emment, con-
spicuous characters will be continued in their seats in
the sovereign assembly from one election to another,
whatever changes are made in the seats around them.
By superior art, address, and opulence, by more splen-
did birth, reputations, and connexions, they wifl be able
to intrigue with the people, and their leaders out of
doors, until they worm out most of their opposers, and
introduce their friends. To this end they will bestow
all offices, contracts, privileges in commerce, and other
emoluments on the latter, and their connexions, and
1 3 Adams's Defence of American Constitution, Letter 6, p. 215, 216.
See North American Review, Oct 1827, p. 263.
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CH. VIII.] THE LEGISLATURC. 33
throw every vexation and disappointment in the way
of the former, until they establish such a system of
hopes and fears throughout the whole state, as shaU
enable them to carry a majority in every fresh election
of the house. The judges will be appointed by them
and their party, and of consequence will be obsequi-
ous enough to their inclinations. The whole judicial
authority, as well as the executive, will be employed,
pprverted, and prostituted, to the purposes of elec-
tioneering. No justice will be attainable ; nor will inno-
cence or virtue be safe in the judicial courts, but for the
friends of the prevailing leaders. Legal prosecutions
will be instituted, and carried on against opposers to
their vexation and ruin. And as they have the public
purse at command, as well as the executive and judi-
cial power, the public money will be expended in the
same way. No favours will be attainable, but by those,
who vrill court the ruUng demagogues of the house, by
votmg for their friends, and mstruments ; and pensions,
tod pecimiary rewards and gratifications, as well as
honours, and offices of every kind, voted to friends and
partisans, 5lc. &c. The press, that great barrier and
bulwark of the rights of mankind, when it is protected
by law, can no longer be free. If the authors, writers,
and printers, vnll not accept of the hire, that will be
offered them, they must submit to the rum, that will be
denounced against them. The presses, with much
secrecy and concealment, will be made the vehicles of
calumny agamst the minority, and of panegyric, and
empirical applauses of the leaders of the majority, and
no remedy can possibly be obtained. In one word, the
whole system of affiadrs, and every conceivable motive
of hope or fear, will be employed to promote the private
interests of a few, and their obsequious majority ; and
VOL. II. 5
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34 CONSTITUTION OF THE V. STATES. [BOOK IIU
there id no remedy but in arms. Accordingly we find in
all the Italian republics, the mmority always were driv-
en to arms in despair.^
^ 662. Anothfer learned writer has ventured on the
bold declaration, that *^ a single legislature is calculated
to unite in it all the pernicious qualities of the different
extremes of bad government. It produces general
weakness, inactivity, and confusion ; and these are in-
termixed with sudden and violent fits of despotism, in-
justice and cruelty." *
^ 663. Without conceding, that this language exhib-
its an unexaggerated picture of the results of the legis-
lative power being vested in a single assembly, there is
enough in it to satisfy the minds of considerate men,
that there is great danger in such an exclusive deposit
of it.^ Some check ought to be provided, to maintain
the real balance intended by the constitution ; and this
check will be most effectually obtained by a co-ordinate
branch of equal authority, and different organization,
which shall have the same legislative power, and pos*
sess an independent negative upon the doings of the
other branch. The value of the check will, indeed, in a
great measure depend upon this difference of organiza-
tion. If the term of office, the qualifications, the mode of
election, the persons and interests represented by each
branch, are exactly the same, the check will be less
powerful, and the guard less perfect, than if some, or
all of these ingredients differ, so as to bring into play
all the various interests and influences, which belong to
a free, honest, and enlightened society.
1 3 Adtms'f Defence of American Conatitation, 284 to 386.
8 1 Wilson's Law Lect 393 to 405 ; The Federalist, Na 22.
3 See Sidney on Government, eh. 3, $ 45.
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CH. rmJ] THE LE«ISLATURX, 36
§ 554. The vahie, then, of a distrftution of the legis-
lative power, between two branches, each possessing a
negative upon the other, may be summed up under the
following heads. First : It operates directly as a se-
curity against hasty, rash, and dangerous legislation ; and
allows errors and mistakes to be corrected, before they
have produced any public mischiefs. It interposes de-
lay betweaoi the introduction, and final adoption of a
measure ; and thus furnishes time for reflection ; and
for the successive deliberations of different bodies, ac-
tuated by different motives, and organized upon difer-
. ent principles.
^ 555. In the next place, it operates indirectly as a
preventive to attempts to carry private, personal, or
party objects, not connected with the common good
The very circumstance, that there exists another body
clothed with equal power, and jealous of its own rights,
and independent d* the influ^ice of the leaders, who
favour a particular measiu*e, by whom it must be scan-
ned, and to whom it must be recommended upon its
own merits, will have a silent tendency to discourage
the effiMis to carry it by surprise, ot by mtrigue, or by
corrupt party combinations. It is £su* less easy to de-
ceive, or ccHTupt, or persuade two bodies into a course,
subversive of the general good, than it is one ; especial-
ly if the elements, of which they are composed, are es-
sentially different
^ 556. In the next place, as legislation necessarily
acts, or may act, upon the whole community, and in-
volves interests of vast difficulty and complexity, and
requires nice adjustments, and comprehensive enact-
ments, it is of the greatest consequence to secure an
independent review of it by different minds, acting
under different, and sometimes opposite opinions and
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36 COWSTITUTIOir of the U. states, [book III.
feeliij^s ; so,*' that it may be as perfect, as human wis-
dom can devise. An appellate jurisdiction, therefore,
that acts, and is acted upon alternatively, in the exer-
cise of an independent revisory authority, must have
the means, and can scarely fail to possess the will, to
give it a full and satisfactory review. Every one knows,
notwithstanding all the guards interposed to secure due
deliberation, how imperfect all human legislation is;
how much it embraces of doubtful principle, and of still
more doubtful utility ; how various, and yet how defec-
tive, are its provisions to protect rights, and to redress
wrongs. Whatever, therefore, naturally and necessa- .
rily awakens doubt, solicits caution, attracts inquiry, or
stimulates vigilance and industry, is of value to aid us
against precipitancy in framing, or altering laws, as well
as against yielding to the suggestions of indolence, the
selfish projects of ambition, or the cunning devices of
corrupt and hollow demagogues.^ For this purpose, no
better expedient has, as yet, been foimd, than the crea-
tion of an independent branch of censors to revise the
legislative enactments of otho^and to alter, amend, or
reject them at its pleasure,^aiiaHib, in return, its own
are to pass through a like ordeaL
^ 557. In the next place, there can scarcely be any
other adequate security against encroachments upon
the constitutional rights and liberties of the people.
Algernon Sidney has said with great force, that the legis-
lative power is always arbitrary, and not to be trusted
in the hands of any, who are not bound to obey the
* " Look," says an intelligrent writer, " into every society, analyze pub-
lic measures, and get at the real conducters of thero,and it will be found,
that few, very few, men in any government, and in tiie most democraiical
perhaps the feweHj are, in fact, the persons, who give the lead and direc-
tion to all, which is brought to pass." Thoughts upon the Political Sit-
oation of the United States of America, printed at Worcester, 1788.
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CH. riuJ] THE LEGISLATURE. 37
laws they make.' But it is not less true, that it has a
constant tendency to overies^ its proper boundaries,
from passion, from ambition, from inadvertence, from
the prevalence of faction, or from the overwhelming m-
fluence of private interests.* Under such circumstan-
ces, the only effectual barrier against oppression, acci-
dental or intentional, is to separate its operations, to
balance interest against interest, ambition against ambi-
tion, the combinadons and spirit of dominion of one
body against the like combinations and spirit of another.
And it is obvious, that the more various the elements,
which enter mto the actual composition of each body,
the greater the security will be.' Mr. Justice Wilson
has truly remarked, that, ^^ when a single legislature is
determined to depart from the principles of the consti-
tution, and its uncontrollable power may prompt the de-
termination^ there is no constitutional authority to check
its progress. It may proceed by long and hasty strides
in violating the constitution, till nothing but a revolution
can check its career. Far different will the case be,
when the legislature consists of two branches. If one
of them should depart, or attempt to depart, from the
principles of the constitution, it will be drawn back by
the other. The very apprehension of the event will
prevent the departure, or the attempt*
1 Sidney's Disc, on Government, ch. 3, § 45.
8 The Federalist, No. 15. 3 Id. No. 62, 15.
4 1 Wilson's Law Lect. 396 ; The Federalist, No. 62, 63. — Mr. Jef-
ferson was decidedly in favour of a division of the legislative power into
two branches, as will be evident from an examination of his Notes on
Virginia, (p. 194,) and his Correspondence at the period, when this sub-
ject was much discussed.* De Lolme, in his work on the constitution
of England, has (ch. 3, p. 214, &c.) some very striking remarks on the
same subject, in the passage already cited. He has added : ** The re-
sult of a division of the executive power is either a more or less speedy
• . -a Pitk. flirt, sea.
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38 CONSTITUTION OF THB U. 8TAT£S. [BOOK III.
^ 558. Such is an outline of the general reasoning,
by which the system of a separation of the legislative
power into two branches has been maintained. Expe-
rience has shown, that if in all cases it has not been
found a complete check to inconsiderate or imconstitu-
tional legislation; yet, that it has, upon many occasions,
been found sufficient for the purpose. There is not
probably at this moment a single state in the Union,
which would consent to unite the two branches into one
assembly ; though there have not been wantmg at all
times minds of a high order, which haiTe been led by
enthusiasm, or a love of simplicity, or a devotion to
theory, to vindicate such a union with arguments strik-
ing and plausible, if not convincing.
§ 559. In the convention, which formed the consti-
tution, upon the resolution moved, *' that the nati<mal
legislature ought to consist of two branches,'' all the
states present, except Pennsylvania, voted in the af-
firmative.^ At a subsequent period, however, seven
only, of eleven states present, voted in the affirma-
tive ; three in the negative, and one was divided.* But,
although in the convention this diversity of opinion ap-
pears,* it seems probable, that ultimately, when a na-
tional government was decided on, which should exert
great controlling authwity over the states, all opposi-
tion was withdrawn, as the existence of two branches
furnished a greater security to the lesser states. It
does not appear, that this division of the legislative
establishment of the right of the strongest, or a continued state of war ;
that of a division of the legislative power is either tmth, or general
tranquillity." See also Paley's Moral and Political Philosophy, B. 6, ch.
6,7.
1 Journal of the Convention, 85 ; 2 Pitk. Hist 233.
s Journal of the Convention, 140.
3 Yates's Minutes, 4 Elliot's Debates, 59, 75, 76 ; Id. 87, 88, 89 ; Id.
124, 125.
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CH. Till.] THE L£GISLATUR£« 39
power became with the people any subject of ardent
discussion, or of real controversy. If it had been so,
deep traces of it would have been found in the public
debates, instead of a general silence. The Federalist
touches the subject in but few places, and then princi-
pally with reference to the articles of confederation, and
the structure of the senate.^ In fact, the opponents of
the constitution felt, that there was additional security
given to the states, as such, by their representation in
the senate ; and as the large states must have a com-
manding influence upon the actual basis in the house,
the lesser states could not but unite in a desire to main-
tain their own equality in a co-ordinate branch.*
§ 560. Having considered the general reasoning, by
which the division of the legislative power has been
justified, it may be proper, in conclusion, to give a sum-
mary of those grounds, which were deemed most im-
portant, and which had most influence in settling the
actual structure of the constitution of the United States.
The question of course had reference altogether to the
establishment of the senate ; for no one doubted the
propriety of establishing a house of representatives, as
a depositary of the legislative power, however much
any might differ, as to the nature of its composition.
^661. In order to justify the existence of a senate
with co-ordinate powers, it was said, first, that it was a
misfortune incident to republican governments, though
in a less degree than to other governments, that those,
who administer it, may forget their obligations to then-
constituents, and prove unfaithful to their important
trust. In this point of view, a senate, as a second
branch of the legislative assembly, distinct fi-om, and
1 The Federalist, No. 22, 62, 63.
9 The Federalist, No. 22 ; Id. No. 37, 38 ; Id. No. 39 ; Id. No. 62.
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40 CONSTITUTION OF THE U. STATES. [bOOK III.
dividing the power with a first, must be in all cases a
salutary check on the government. It doubles the
security to the people by requiring the concurrence of
two distinct bodies, in schemes of usurpation or per-
^fidy ; whereas the ambition or corruption of one would
otherwise be sufficient This precaution, it was adde^!,
was founded on sujh clear principles, and so well un-
derstood in the United States, that it was superfluous
to enlarge on it. As the improbability of sinister com-
binations would be in proportion to the dissimilarity in
the genius of the two bodies, it must be politic to dis-
tinguish them fi-om each other by every circumstance,
which would consist with a due harmony in all proper
measures, and with the genume principles of republican
government*
§ 662. Secondly. The necessity of a senate was
not less indicated by the propensity of all single and
numerous assemblies to yield to the impulse of sud-
den and violent passions, and to be seduced by fac-
tious leaders into intemperate and pernicious resolu-
tions. Examples of this sort might be cited without
number, and fi*om proceedings in the United States, as
well as fit)m the history of other nations. A body,
which is to correct this infirmity, ought to be free from
it, and consequently ought to be less numerous, and to
possess a due degree of firmness, and a proper tenure
of office.'
^ 663. Thirdly. Another defect to be supplied by
a senate lay in the want of a due acquaintance with the
objects and principles of legislation. A good govern-
ment implies two things ; fidelity to the objects of the
1 The PederalUt, No. 69.
9 The Federalist, No. 62 ; Paley's Moral and Political Philosophy,
B. 6, cL 6, 7 ; 2 Wilson's Law Leci 144 to 148.
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CH. Till.] TH£ L£GI8LATim£. 41
government ; secondly, a knowledge of the means, by
which those objects can be best attained. It was sug-
gested, that in the American goveraments too little at-
tention had been paid to the last ; and that the estab-
lishment of a senate upon a proper basis would greatly
increase the chances of fidelity, and of wise, and safe
legislation. What (it was asked) are all the repealing,
explaining, and amending laws, which fill and disgrace
our voluminous codes, but so many monuments of de-
ficient wisdom; so many impeachments exhibited
by each succeeding, against each preceding session ;
30 many admonitions to the people of the value of those
aids, which may be expected firom a well-constituted
senate? ^
§ 664. Fourthly. Such a body would prevent too
great a mutability in the public councils, arising from a
Tapid succession of new members ; for from a change of
men there must proceed a change of opinions, and from
a change of opinions, a change of measures. Such in-
stability in legislation has a tendency to diminish respect
and confidence abroad, as well as safety and prosperity
at home. It has a tendency to damp the ardour of in-
dustxyloid enterprise; to diminish the security of prop-
erty ; ajid to impair the reverence and attachment,
which are indispensable to the permanence of every
political institution.*
§ 666. Fifthly. Another ground, illustratmg the util-
ity of a senate, was suggested to be the keeping alive of
a due sense of national character. In respect to foreign
nations, this was of vital importance ; for m our inter-
course with them, if a scrupulous and uniform adher-
ence to just principles was not observed, it must sub-
1 The Federalist, No. 62. « Id. No. &l
VOL. II. 6
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43 CONSTITUTiOlf OF THB U. «TATBS. [bOOK in*
ject us to many embarrassments and collisions. It is
difficult to impress upon a single body, which is nume-
rous and changeable, a deep sense of the value of na-
tional character. A small portion of the praise, or
blame of any particular measure can fall to the lot of
any particular person ; and the period of office is so
short, that litde responsibility is felt, and little pride is
indulged, as to the course of the government^
^ 566. Sixthly. It was urged, that paradoxical as
it might seem, the want in some important cases of a
due responsibility in the government soises from that
very frequency of elections, which in other cases pro-
duces such responsibility. In order to be reasonable,
responsibility must be limited to objects withm the
power of the responsible party ; and in order to be
effectual, it must relate to operations of that power, of
which a ready and proper judgment can be formed by
the constituents. Some measures have singly an im-
mediate and sensible operation ; others agsdn depend
on a succession of weU connected schemes, and have
a gradual, and perhaps unobserved operation. If, there^
fore, there be but one assembly, chosen for a short peri-
od, it will be difficult to k^p up the train of prefer
measures, or to preserve the proper connexion between
the past and the future. And the more numerous the
body, and the more changeable its component parts,
the more difficult it wiU be to preserve the perscmal
responsibility, as well as the uniform action, of the suc-
cessive memb^^ to the great objects of the public
wdfare.*
^ 667. Lastiy. A senate duly constituted would not
only operate, as a salutary check upon the representa-
1 The Federalist, No. 63. .a M. No. 68.
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OH. Tfn.] THS LKmisukTxrwm. 48
iiyes^ but occasbiiallj iipoB the peqple themselves,
a^painst their own temporary delosions and errors.
The cod, deliberate sense of the commimity ought, in
aQ governments, and aetuattjr will, m all free gorem*
ments^ ultimately prevail over the views of their rulers.
Bat there are particular moments in public affairs, when
the people, stimulated by some irregular passion, w
some illicit advantage, or misled by the artful misrepre-
sentations of mterested men, may call jbr measures,
whidi they themselves will afterwards be the most
ready to lament and condemn. In these critical mo*
ments, how salutary will be the interference of a body
of respectaWe citizens, chosen without reference to the
exciting cause, to check the misguided career of public
opinion, and to suspend the blow, untS reason, justice,
find truth can regain their authority over the public
mind.^ ' It was thought to add great weight to all these
considerations, that history has informed us of no long-
lived republic, which bad not a senate. Sparta, Rome,
Carthage were, in fact, the only states, to whom that
dbaraeter can be applied.'
& The Federalist, No. 69.
9 The Federalist, No. 63. — There areeome very striking remarks on
this subject in the reasoning of the convention, in the county of Essex,
called to consider the constitution proposed for Massachusetts, in 1778,*
and which was finally rejected. ** The legislative power," said that
body, "must not be trusted with one assembly. A single assembly is
frequently influenced by the vices, follies, passions, and prejudices of an
mdividual. It is liable to be avaricious, and to exempt itself from the
burthens it lays on its constituents. It is subject to ambition ; and after
a series of years will be prompted to vote itself perpetual. The long
paHinmeni in Eisgland voted itself perpetual, and thereby for a time de-
stroyed the political liberty of the «mbject Holland was governed by
• It is coDUiDod in a pamphlet, entitled ** The Ewoz Result,** and was printed io 1778. I
quote the passage ftom Blr. BavageVi ralnable Exposition of the Constitution of MassacbusetU,
printed in the New-Bngland Mafazine for March, 1838, p. 9. Sise abo on this sobject Palej's
H«ra]PhUoioph7,B.6,eb.7,p.3e8 } The Federalis^ No. 88,63.
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44 CONSTITUTIOir OF THE U. STATES. [BOOK III.
^ 668. It will be observed, that some parts of the
foregoing reasoning apply to the fundamental impor-
tance of an actual division of the legislative power ; and
other parts to the true principles, upon which that di-
vision should be subsequently organized, in order to
give full effect to the constitutional check. Some parts
go to show the value of a senate ; and others, what
should be its structure, in order to ensure wisdom, ex-
perience, fidelity, and dignity in its members. All of
it, however, instructs us, that, in order to give it fair
play and influence, as a co-ordinate branch of govern-
ment, it ought to be less numerous, more select, and
more durable, than the other branch ; and be chosen in
a manner, which should combine, and represent differ-
ent interests with a varied force.* How far these ob-
jects are attained by the constitution will be better
seen, when the details belongmg to each department
are succesifiively examined.
^ 569. This discussion may be closed by the remark,
that in the Roman republic the legislative authority, in
the last resort, resided for ages in two distinct political
bodies, not as branches of the same legislature, but as
distinct and independent legislatures, in each of which
an opposite interest prevailed. In one, the patrician ;
one representative assembly, annually elected. They afterwards voted
themselves from annual to septennial ; then for life ; and finally exerted
the power of filling up all vacancies, without application to their constit-
uents. The government of HoUand is now a tyranny, thottgh a rtpuhltc
The result of a single assembly will be hasty and indigested ; and their
judgments frequently absurd and inconsistent There must be a second
body to revise with coolness, and wisdom, and to control with firmness,
independent upon the first, either for their creation, or existence. Yet
the first must retain a right to a similar revision and control over the
second."
1 The Federalist, No. 63, 63.
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CH. Tin.] THE LBOISLATITBS. 46
in the other, the plebeian predominated And yet,
during the co-existence of these two legislatures, the
Roman republic attained to the supposed pmnade of
human greatness.^
1 The Fedenlift, No. 34.
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4B CONSTITUTJOir OF TBB IT* 8TAT£S. [bQOIC HI.
CHAt>TEH IX.
HOUSE OF REPRESENTATIYBH.
§ 670. The second section of the first article con-
tains the structure and organization of, the house of
representatives. The first clause is as foUows :
"The house of representatives shall be composed of
" members chosen every second year by the people of
" the several states ; and the electors in each state shall
" have the qualifications requisite for electors of the
" most numerous branch of the state legislature.**
^571. As soon as it was settled, that the legislative
power should be divided into two separate and distinct
branches, a very important consideration arose in regard
to the organization of those branches respectively. It
is obvious, that the organization of each is susceptible of
very great diversities and modifications, in respect to
the principles of representation ; the qualification of the
electors, and the elected ; the term of service of the
members ; the ratio of representation ; and the number,
of which the body should be composed.
^ 572. First; the principle of representation.
The American people had long been in the enjoyment
of the privilege of electing, at least, one branch of the
legislature ; and, in some of the colonies, of electing all
the branches composing the legislature. A house of
representatives, under various denominations, such as a
house of delegates, a house of commons, or, simply, a
house of representatives, emanating directly fix)m, and
responsible to, the people, and possessing a distinct and
independent legislative authority, was familiar to all the
colonies, and was held by them in the highest rever-
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CH. IX.] HOiarsfi of RfiPRESsnrATiTss. 47
ence and respect They justly thought, that as the
goTermnent in general should always have a common
interest with the people, and be admin stered for their
good ; so it was essential to their rights'and liberties,
that the most numerous branch should have an immedi-
ate dependence iq>on, and sympathy with, the people.^
Th&te was no novelty in this view. It was not the
mere result of a state of cdonial dependence, in which
their jealousy was awake to all the natural encroach-
ments of power in a foreign reahn. They had drawn
their opinions and principles firom the practice of the
parent country. They knew the inestimable value oi
die house of commons, as a component branch of the
British parliament ; and they believed, that it had at
all times furnished the best security against the oppres-
sions of the crown, and the aristocracy. While the
power of taxation, (rf revenue, and of supplies, remamed
in the hands of a popular branch, it was difficult for
usurpation to exist for any length of time without check ;
and prerogative must yield to that necessity, which
controtied at once the sword and the purse. No rea-
soning, th^^efore, was necessary to satisfy the American
people of die advantages of a house of representatives,
vdiich should emanate directiy from themselves; which
should guard their interests, support their rights, ex-
press theu* opmions, make known their wants, redress
their grievances, and introduce a pervading popular influ-
ence throughout all the operations of the government.
Experience, as weU as theory, had settled it in their
minds, as a fundamental principle of a free government,
and especis3iy of a republican government, that no laws
1 The Federalist, No. 52; 1 Black. Comm« 158, 159; Paley's Moral «
Philosophy, B. 6, ch. 7 ; 1 Wilson's Law Lect 429 to 433 ; 2 Wilson's
Law Lect 122 to 132. »
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48 CONSTITUTION OF THE 0. STATES. [bOOK III.
ought to be passed without the co-operation and con-
sent of the representatives of the people; and that
these representatives should be chosen by themselves
without the intervention of any other functionaries to
intercept, or vary their responsibility. ^
§473. The principle, however, had been hitherto
applied to the political organization of the state legis-
latures only ; and its application to that of the fed-
eral government was not without some diversity of
opinion. This diversity had not its origin in any doubt
of the correctness of the principle itself when applied to
simple republics ; but, the propriety of applying it to
cases of confederated republics was affected by other
independent considerations. Those, who might wish
to retain a very large portion of state sovereignty, in its
representative character, in the coimcils of the Union,
would naturally desire to have the house of representa-
tives elected by the state in its political character, as
under the old confederation. Those, on the other hand,
who wished to impart to the government a national
character, would as naturally desire an independent
election by the people themselves in their primary meet-
ings. Probably these circumstances had some opera-
tion upon the votes given on the question in the con-
vention itself. For it appears, that upon the origmal
proposition in the convention, " That the members of
the first branch of the national legislature ought to be
elected by the people of the several states, six states
voted for it, two against it, and two were divided.* And
upon a subsequent motion to strike out the word ^ peo-
ple,'* and insert m its place the word " legislatures,**
I 1 Tacker's Black. Comm. App. 2B.
s Journal of Convention, May 31, 1787^ p. 85, 86, 135 ; 4 EUiot'a De-
batea, (Yatea'a Minutea,) 58.
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CH. IX.] HOUSE OF REPRESENTATIVES. 49
three states voted in the affirmative and eight in the
negative.^ At a subsequent period a motion, that the
representatives should be appointed in such manner as
the legislature of each state should direct, was negativ-
ed^ six states voting in the affirmative, three, in the
negative, and one being divided ; and the final vote in
favour of an election by the people was decided by the
vote of nine states in the affirmative, one voting in the
negative, and one being divided.* The result was not
therefore obtained without much discussion and argu-
ment ; though at last an entbe imanimity prevailed.*
It is satisfactory to know, that a fundamentsJ principle
of public liberty has been thus secured to ourselves and
our posterity, which will for ever indissolubly connect
the interests of the people with the mterests of the
Union.* Under the confederation, though the delegates
to congress might have been elected by the people,
they were, in fact, in all the states except two, elected
by the state legislature.*
1 Joanialof Convention, May 31, 1787, p. 103, J04 ; 4 Elliot'a De-
bates, (1 Yates's Minutes,) 62, 63, 90, 91.
9 Journal of Convention, June 21, 1787, p. 140, 141, 215 ; 4 Elliot's
Debates, 90, 91, (Yates's Minutes.)
3 Journal of Convention, p. il6, 233.
4 Mr. fiurke, in his Reflections on the French Revolution, has treated
the subject of the mischiefs of an indirect choice only by the people of
their representatives in a masterly manner. He has demonstrated, that
such a system must remove all real responsibility to the people from the
representative. Mr. Jefierson has expressed his approbation of the prin-
ciple of a direct choice in a very qualified manner. He says, " I ap-
prove of the greater house being chosen by the people directly. For,
though I think a house so chosen will be very inferior to the present
congress, toiU be very ill quaiiJUd to legislate for the Union, for foreign
nations, &.c. ; yet this evil does not weigh against the good of preserv-
ing inviolate the fundamental principle, that the people ought not to be
taxed but by representatives chosen immediately by themselves."
2 Jefferson's Corresp. p. 273.
* The Federalist, No. 40.
VOL. II. 7
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60 coNsnruTioir of the v. states, [book hi.
§ 574 We accordingly find, that in the section under
consideration, the house of representatives is required
to be composed of representatives chosen by the people
of the several states. The choice, too, is to be made
immediately by them ; so that the power is direct ; the
influence (Krect ; and the responsibility direct If any
intermediate agency had been adopted, such as a choice
through an electoral college, or by official personages,
or by select and specially qualified functionaries pro
hoc mcBj it is obvious, that the dependence d* the repre-
sentative upon the people, and the responsibility to
them, would have been far less felt, and £Bir more ob-
structed. Influence would have naturally grown up
with patronage ; and here, as in many other case^ the
legal maxim would have applied, causa proxma^ non
remotOj spectaiwr. The select body woidd have been
at once the patrons and the guides of the represen-
tative; and the people themselves have beonne the
instruments of subverting their own rights and power.
§ 676. The indirect advantages from this immediate
agency of the people in the choice of their representa-
tives are of incalculable benefit, and deserve a brief
mention in this place, because they furnish us with
matter for most serious reflection, in regard to the
actual operations and influences of republican gov-
ernments. : In the first place, the right confers an
additional sense of personal dignity and duty upon
the mass of the people. It gives a strong direc-
tion to the education, studies, and pursuits of the whole
community. It enlarges the sphere of action, and con-
tributes, in a high degree, to the formation (rf the public
manners, and national character. It procures to the
common people courtesy and sympathy from their su-
periors, and difiuses a common confidence, as well as a
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,€& IX.] HOirU OF R£FmS»VTATITS8. 51
coDimoii interest) through aU the ranks of society. It
awakens a desire to examine, and sift, and debate all
pi&lic proceedings, and thus nourishes a lively curiosity
to acquire knowledge, and, at the same time, furnishes
the means of gratifying it The proceedings and de-
bates of the legislature ; the conduct of publk: officers
from the highest to the lowest ; the character and poo-
duct of the executive and his ministers ; the struggles,
mtriguesy and conduct of difierent parties ; and the dis-
cussion of the great public measures and questions,
which s^tate and divide the community, are not only
freely canvassed, and thus improve and elevate con-
versation ; but they gradually furnish the mmd with
safe and solid materials for judgment upon all public
affairs ; and check that impetuosity and rashness, to
which sudden impulses might otherwise lead the peo-
ple, when they are artfully misguided by selfish dema-
gogues, and plausible schemes of change*^
^ 576. But this fundamental pvincifde of an immedi-
ate choice by the people, however important, would
alone be insufficient for the pubUc security, if the right
of choice had not many auxiliary guards and accom-
paniments. It was indispensable, secondly, to provide
for the qualifications of the electors. It is obvious, that
even when the principle is established, that the popular
branch of the legislature shall emanate du*ecdy from the
people, there still remains a very serious question, by
whom and in what manner the choice shall be made.
It is a question vital to the system, and in a fraciicdl
sense decisive, as to the durability and efficiency of the
powers of government. Here, there is much room for
doubt, and ingenious speculation, and theoretical inqui-
1 1 have borrowed these views from Dc Palejr, and fear only, that by
abridging them I have lessened their force. Paley's Moral Philosophy,
6. 6^ ch. 6. See abo 2 Wilson's Law Lect 124 to 12a
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52 CONSTITUTION OF THE IT. STATES. [bOOK ni.
ry ; upon which diflFerent minds may arrive, and indeed
have arrived, at very different results. To whom ought
the right of suffrage, in a free government, to be con-
fided 1 Or, in other words, who ought to be permitted
to vote in the choice of the representatives of the peo-
ple 1 Ought the right of suffrage to be absolutely
universal ? Ought it to be qualified and restrained 1
Ought it to belong to many, or few ? If there ought to
be restraints and qualifications, what are the true bound-
aries and limits of such restraints and qualifications ?
^ 677. These questions are sufficiently perplexing
and disquieting in theory ; and in the practice of differ-
ent states, and even of free states, ancient as weU as
modem, they have assumed almost infinite varieties of
form and illustiration. Perhaps they do not admit of
any general, much less of any universal answer, so as
to fiunish an unexceptionable and certsdn rule for.aU
ages and all nations. The manners, habits, institutions,
characters, and pursuits of different nations ; the local
position of the territory, in regard to other nations ; the
actual organizations and classes of society ; the influ-
ences of peculiar religious, civil, or political institutions ;
the dangers, as well as the difficulties, of the times ; the
degrees of knowledge or ignorance pervading the mass
of society ; the national temperament, and even the cli-
mate and products of the soil ; the cold and thoughtful
gravity of the north; and the warm and mercurial
excitability of tropical or southern regions ; all these
may, and probably will, introduce modifications of prin-
ciple, as well as of opinion, m regard to the right of
suffrage, which it is not easy either to justify or to over-
throw.*
A 1 Black. Comm. 171, 172. — Mr. Justice Blackstone* has remarked,
*lBlMk.Comm. 171.
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CH. IX.] H0IT8C OF RSPRESSlTTATiyES. 63
^ 578. The most strenuous advocate for universal
suffrage has never yet contended, that the right should
be absolutely universal No one has ever been suffi-
ciently visionary to hold, that all persons, of every age,
degree, and character, should be entitled to vote in all
elections of all public officers. Idiots, infants, minors,
and persons insane or utterly imbecile, have been, with-
out scruple, denied the right, as not having the sound
judgment and discretion fit for its exercise. In many
countries, persons guilty of crimes have also been denied
the right, as a personal punishment, or as a security to
society. In most countries, females, whether married
or smgle, have been purposely excluded fi'om voting, as
interfering with sound policy, and the harmony of social
life. In the few cases, in which they have been per-
mitted to vote, experience has not justified the coucla-
sion, that it has been attended with any correspondent
advantages, either to the public, or to themselves. And
yet it would be extremely difficult, upon any mere theo-
retical reasoning, to establish any satisfactory principle,
" That the true reason of requiring any qualification with regard to proper-
ty in voters is to exclude such persons, as are in so mean a situation, that
they are esteemed to have no will of their own. If these persons had votes,
they would be tempted to dispose of them under some undue influence or
other. This would give a great, an artful, or a wealthy man a larger share
in elections, than is consistent with general liberty. If it were probable,
that every roan would give his vote freely and without influence of any
kind, then, upon the true theory and genuine principles of liberty, every
member of the community, however poor, should have a vote in electing
those delegates, to whose charge is committed the disposal of his proper-
ty, his liberty, and his life. But since that can hardly be expected in
persons of indigent fortunes, or such as are under the immediate dominion
of others, all popular states have been obliged to establish certain quali-
fications, whereby some, who are suspected to have no will of their own,
are excluded from voting, in order to set other individuals, whose will
may be supposed independent, more thoroughly upon a level with each
other.'' Similar reasoning might be employed to j ustify other exclusions,
besides those founded upon a want of property.
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64 CONSTITUTION OF THS V* STATSS. [bOOE III.
upon which the one half of every society has thus been
systematically excluded by the other half from all right
of participating in government, which would not, at the
same time, apply to and justify many other exclusions.
If it be said, that all men have a natural, equal, and
unalienable right to vote, because they are all bom free
and equal ; that they all have common rights and inter-
ests entided to protection, and therefore have an equal
right to decide, either personally or by their chosen
representatives, upon the laws and regulations, which
shall control, measure, and sustain those rights and
interests ; that they cannot be compelled to surrender,
except by their free consent, what, by the bounty and
order of Providence, belongs to them in common with
all their race ; — what is there in these considerations,
which is not equally applicable to females, as free, intel-
ligent, moral, responsible beings, entided to equal rights,
and mterests, and protection, and havmg a vital stake in
all the regulations and laws ofsociety ? And if an excep-
tion, from the nature of the case, could be felt in regard
to persons, who are idiots, infants, and insane ; how can
this apply to persons, who are of more mature growth,
and are yet deemed mmors by the municipal law?
Who has an original right to fix the time and period of
pupilage, or minority 1 Whence was derived the right
of the ancient Greeks and Romans to declare, that
women should be deemed never to be of age, but should
be subject to perpetual guardianship? Upon what
principle of natural law did the Romans, in after times,
fix the majority of females, as well as of males, at twenty-
five years ? * Who has a right to say, that in England
it shall, for some purposes, be at fourteen, for others, at
seventeen, and for all, at twenty-one years ; while, in
1 1 Black. Comm. 463^ 464.
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€H. IX.] HOUSE or RSPRESENTATirSS. 66
France, a person arrives, for all purposes, at majority,
only at thirty years, in Naples at eighteen, and in Hol-
land at twenty-five ? * Who shall say, that one man is
not as well qualified; as €MCQter, at eighteen years of ag^e,
as another is at twenty-five, or a third at forty ; and far
better, than most men are at eighty ? And if any socie-
ty is invested with authority to settle the matter of the
age and sex of voters, according to its own view of its
policy, or convenience, or justice, who shall say, that it
has not equal authority, for like reasons, to settle any
other matter regarding the rights, qualifications, and
duties of voters ? *
§ 679, The truth seems to be, that the right of
voting, like many other rights, is one, which, wheth-
er it has a fixed foundation in natural law or not, has
always been treated in the practice of nations, as a
strictly civil right, derived from, and regulated by each
society, according to its own circumstances and inter-
ests.^ It is difficult, even in the abstract, to conceive
how it could have otherwise been treated. The terms
and conditions, upon which any society is formed and
organized, must^ essentially depend upon the wUI of
those, who are associated ; or at least of those, who
constitute a majority, actually controlling the rest.
Originally, no man could have any right but to act for
himself; and the power to choose a chief magistrate or
other officer to exercise dominion or authority over
others, as well as himself, could arise only upon a joint
consent of the others to such appointment ; and their
consent might be qualified exactly according to their
1 1 Black ComiiL 463, 464. » Id. 171.
3 1 Black. Comtn. 171; 2 Wilson's Law Lect 130; Montesquieu's
Spirit of Laws, B. 11. ch. 6 ; 1 Tucker's Black. Comm. App. 52, 53.
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56 CONSTITUTION OF THE V. STATES. [bOOK III.
own interests, or power, or policy. The choice of
representatives to act in a legislative capacity is not
only a refinement of much later stages of actual asso-
ciation and civilization, but could scarcely occur, until
the society had assumed to itself the right to introduce
such institutions, and to confer such privileges, as it
deemed conducive to the public good, and to prohibit
the existence of any other. In point of fact, it is well
known, that representative legislative bodies, at least
in the form now used, are the peculiar invention of
modern times, and were unknown to antiquity. If,
then, every well organized society has the right to
consult for the common good of the whole, and if, upon
the principles of natural law, this right is conceded by
' the very union of society, it seems difficult to assign
any limit to this right, which is compatible with the
due attainment of the end proposed. If, therefore,
any society shall deem the common good and interests
of the whole society best promoted under the partic-
ular circumstances, in which it is placed, by a restric-
tion of the right of suffrage, it is not easy to state any
solid ground of objection to its exercise of such an au-
thority. At least, if any society has a clear right to de-
prive females, constituting one half of the whole popu-
lation, from the right of suffrage, (which, with scarcely
an exception, has been uniformly mamtained,) it will
require some astuteness to find upon what ground this
exclusion can be vindicated, which does justify, or at
least excuse, many other exclusions.* Government (to
^Jt^ •^'^ the pithy language of Mr. Burke) has been deemed
i a practical thing, made for the happiness of mankind,
1 See Paley's Moral Philosophy, B. 6, ch. 7, p. 393 ; 1 Black. Comm.
J 71 ; Montesquieu's Spirit of Laws, B. 11. ch. 6.
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CH. IX.] HOUSE OF REPRESENTATIVES. 67
and not to furnish out a spectacle of unifonnity to
gratify the schemes of vbionary politicians.^
§ 580. Without laying any stress upon this theoreti-
cal reasoning, which is brought before the reader, not
so much because it solves all doubts and objecticms,
as because it presents a view of the serious difficulties
attendant upon the assumption of an origmal and un-
alienable right of suffice, as (niginating in natural law^
and independent of ciril law, it may be proper to
state, that every civilized society has uniformly fixed,
modified, and regulated the right of suffrage for itself
according to its own free will and pleasure. Every
constitution of government in these United States has
assumed, as a fundamental principle, the right of the
people of the state to alter, abolish, and modify the (ona
of its own government, according to the sovereign pleas- '
ure of the people.' In fact, the people of each state
have gone much farther, and settled a far more critical
question, by deciding, who shall be the voters, entitled
to approve and reject the constitution fi-amed by a dele-
gated body under their direction. In the adoption of
no state constitution has the assent been asked of any
but the qualified voters ; and women, and minors, and
other persons, not recognised as voters by existing
laws, have been studiously excluded. And yet the
constitution has been deemed entirely obligatory upon
them, as well as upon the minority, who voted against
it. From this it will be seen, how little, even in the
most fi-ee of republican governments, any abstract right
of suffrage, or any original and indefeasible privilege,
has been recognised in practice. If this consideration
1 Burke's Letter to the Sheriff of Bristol in 1777.
3 See Locke on Government, p. 2, § 149, 2S7.
VOL. IL 8
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58 CONSTITUTION OF THE U. STATES* [bOOK UI.
does not satisfy our minds, it at least will prepare us
to presume, that there may be an almost infinite diver-
sity in the established right of voting, without any state
being able to assert, that its own mode is exclusively
founded in natural justice, or is most conformable to
sound policy, or is best adapted to the public security.
It will teach us, that the question is necessarily com-
plex and intricate in its own. nature, and is scarcely
susceptible of any simple solution, which shall rigidly
apply to the circtmistances and conditions, the inter-
ests and the feelings, the institutions and the manners
of all nations.^ What may best promote the public weal,
and secure the public liberty, and advance the public
prosperity in one age or nation, may totally fail of similar
results under local, physical, or moral predicaments
essentiaUy different
^581. It would carry us too far from the immediate
object of these Commentaries to take a general survey
of the various modifications, under which the right of
su&age, either in relation to laws, or magistracy, or
even judicial controversies, has appeared in different
nations in ancient and modem times. The examples
of Greece and Rome, in ancient times, and of England
in modem times, will be found most instractive.* In
England, the qualifications of voters, as also the modes
of representation, are various, and fi*amed upon no
common principle. The counties are represented by
knights, elected by the proprietors of lands, who are
freeholders ;' the boroughs and cities are represented
1 Dr. Lieber's Encyclopfedia Americana, art Consiituium,
9 See^3 Adams's Amer. Constitut Letter 6, p. 263, Sic. p. 440, 3cc.
1 Black. Comm. 171, 172, 173 ; Montesquieu's Spirit of Laws, Book 11,
eh. 13; Id. B. 2, ch.12.
3 1 Black. Comm. 172, 173; Paley's Moral Philosophy, B. 6, ch. 7;
The Federalist, No. 57.
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CH. IX.] HOUSE OF R£PR£S£NTATfT£S. 50
by citizens and burgesses, or others chosen by the
citizens or burgesses, according to the qualifications
prescribed by custom, or by the respective charters
and by-laws of each borough, or city.* In these, the
right of voting is almost infinitely varied and modified.*
In the American colonies, under their charters and
laws, no uniform rules in regard to the right of suffrage
existed. In some of the colpnies the course of the
parent country was closely foUowed, so that fi^ebdd*
ers alone were voters ;* in others a very near approach
was made to universal sufirage among the males of
competent age ; and in others, again, a middle princi-
ple was adopted, which made taxation and voting de-
pendent upon each other, or annexed to it the qualifi-
cation of holdmg some personal estate, or the privilege
of being a fi*eeman, or the eldest son of a freeholder of
the town or corporation.^ When the revolution brought
about the separation of the colonies, and they formed
themselves mto independent states, a very striking
diversity was observable in the original constitutions
adopted by them ; ^ and a like diversity has pervaded
all the constitutions of the new states, which have since
grown up, and all the revised constitutions of the old
states, which have received the final ratification of the
people. In some of the states the right of suffrage
1 1 Black. Comm. 172 to 175 ; 1 Tuck. Black. Comm. App. 209 to
212. See also Bnrko's Reflections on the French Revolution.
2 See Dr. Lieber's Encyclopaedia Americana, art Election; Great
Britatn, ConsiUution of,
3 See Jefferson's Notes on Virginia, 191 ; 1 Tucker's Black. Conun.
App. 96 to 100.
4 See Charter of Rhode-Island, 1663, and Rhode-Island Laws, (edit
1798,) p. 114. See also Connecticut Charter, 1662, and Massachusetts
Charters, 1628 and 1692.
5 2 Wilson's Law Lect. 132 to 138 ; 2 Pitkin's Hist ch. 19, p. 294 to
316.
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60 CONSTITUTION OF THE U. STATES. [bOOK III.
depends upon a certain length of residence,, and pay-
ment of taxes ; in others, upon mere citizenship and
residence ; in others, upon the possession of a freehold,
or some estate of a particular value, or upon the pay-
ment of taxes, or performance of some public duty, such
as service in the militia, or on the highways.^ In
no two of these state constitutions will it be found,
that the qualifications of the voters are setded upon the
same uniform basis.* So that we have the most
abundant proofs, that among a free and enlightened
people, convened for the purpose of establishing their
own forms of government, and the rights of their own
voters, the question, as to the due regulation of the
qualifications, has been deemed a matter of mere state
poUcy, and varied to meet the wants, to suit the preju-
dices, and to fo&ter the mterests of the majority. An
absolute, indefeasible right to elect or be elected,
seems never to have been asserted on one side, or
denied on the other ; but the subject has been freely
canvassed, as one of mere civil polity, to be arranged
upon such a basis, as the majority may deem expedi-
ent with reference to the moral, physical, and intellec-
tual condition of the particular state.'
§ 582. It was under this known diversity of consti-
tutional provisions in regard to state elections, that the
convention, which framed the constitution of the Union,
1 2 Wilson's Law Lect. 132 to 138. — Mr. Hume, in his Idea of a
Perfect Commonwealth, proposes, that the representatives should be
freehohlers of 202 a year, and householders worth 500/. 1 Hume's
Essays, Essay 16, p. 526.
8 See The Federalist, No. 54 ; 2 Wilson's Law Lectures, 132 to 138 ;
2 Pitkin's Hist 294 to 316.
3 Dr. Lieber's Encyclopedia Americana, art ConstUulion of the
UnUed Slates. The Federalist, No. 52 to 54.
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CH. IX.] HOUSE OF REPRESENTATIVES. 61
was assembled. The definition of the right of suffrage
is very justly regarded, as a fundamental article of a
republican government. It was incumbent on the
convention, therefore, to define and establish this right
m the constitution. To have left it open for the occa-
sional regulation of congress would have been improper,
for the reason just mentioned. To have submitted it.
to the Jegislative discretion of the states, would have
been improper, for the same reason ; and for the addi-
tional reason, that it would have rendered too depend-
ent on the state governments, that branch of the fed-
eral government, which ought to be dependent on the
people alone.^ Two modes of providing for the right
of suffrage in the choice of representatives were pre-
sented to the consideration of that body. One was to
devise some plan, which should operate uniformly in
all the states, on a common principle ; the other was to
conform to the existing diversities in the states, thus
creating a mixed mode of representation. In favour of
the former course, it might be urged, that all the states
ought, upon the floor of the house of representatives,
to be represented equally ; that this could be accom-
plished only by the adoption of a uniform qualification
of the voters, who would thus express the same public
opinion of the same body of citizens throughout the
Union ; that if freeholders alone in one state chose the
representatives; and in another all male citizens of
competent age ; and in another all freemen of particu-
lar towns or corporations ; and in another all taxed
inhabitants ; it would be obvious, that different inter-
ests and classes would obtain exclusive representations
in different states ; and thus the great objects of the
1 The Federalist, No. 52.
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62 CONSTITUTION OF THE U, STATES. [bOOK III.
constitution, the promotion of the general welfare and
common defence, might be^ unduly checked and ob-
structed ; that a uniform principle would at least have
this recommendation, that it could create no well-
founded jealousies among the different states, and-
would be most likely to satisfy the body of the people
by its perfect fairness, its permanent equality of opera-
tion, and its entire mdependence of all local legislation,
whether in the shape of state laws, or of amendments
to state constitutions.
§ 583. On the other hand, it might be urged m
fevour of the latter course, that the reducing of the
different qualifications, already existing in the dif-
ferent states, to one uniforte rule, woiild have been
a very difficult task, even to the convention itself,
and would be dissatisfactory to the people of dif-
ferent states.* It would not be very easy for the
convention to frame any rule, which would satisfy
the scruples, the prejudices, of the judgments of a
majority of its own members. It would not be easy
to induce Virginia to give up the exclusive right of
freeholders to vote ; or Rhode-Inland, or Connecticut,
the exclusive right of freemen to vote; or Massachu-
setts, the right of persons possessing a given value of
personal property to vote ; or other states, the right
of persons paying taxes, or having a fixed residence,
to vote. The subject itself was not susceptible of any
very exact limitations upon any general reasoning. The
circumstances of different states might create great di-
versities in the practical operation of any imiform sys-
tem. And the natural attachments, which long habit and
usage had sanctioned, in regard to the exercise of the
» The Federalist, No. 52.
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CH. IX.] House OF B£PR£S£NTATiy£8. 63
nghty would enlist all the feelings, and interests, and
opinions of every state against any substantial change
in its own institutions. A great embarrassment would
be thus thrown m the way of the adoption of the consti-
tution itself, which perhaps would be thus put at haz-
ard, upon the mere ground of theoretical propriety.*
^ 584. Besides ; it might be lU'ged, that it is far from
being clear, upon reasoning or experience, that uniform-
ity in the composition of a representative body is either
desirable or expedient, founded in sounder policy, or
more promotive of the general good, than a mixed sys-
tem, embracing, and representing, and combinmg distinct
interests, classes, and opmions.* In England the house
of commons, as a representative body, is foimded upon
no uniform principle, either of nimibers, or classes, or
I Rawle on the Constitution^ ch. 4, p. 40.
s Mr. Burke manifestly thought, that no system of representative gov-
ernment could be safe without a large admiicture of different persons
and interests. " Nothing,*^ says he, ^ is a due and adequate represonta-
tation of a state, that does not represent its ability, as well as its prop-
erty. But as ability is a vigorous and active principle, and as property is
sluggish, inert, and timid, it can never be safe from the invasion of abili-
ty, unless it be, out of all proportion, predominant in the representation." *
In a subsequent page of his Reflections on the French Revolution, he
discusses the then favorite theory of representation proposed for the
constitution of France, upon the triple basis of territory, population, and
taxation, and demonstrates, with great clearness, its inconvenience, ine-
quality, and inconsistency. .The representatives, too, were to be chosen
indirectly, by electors appointed by electors, who were again chosen by
other electors. " The member," says Mr. Burke, " who goes to the Na-
tional Assembly, is not chosen by the people, nor accountable to them.
There are three elections before he Is chosen ; two sets of magistrates
intervene between him and the primary assembly, so as to render him, as
I have said, an ambassador of a state, and not the representative of the
people within a state," So much for mere theory in the hands of vision-
tLTj and speculative statesmen.
«,
* Borke't RefloctioM onthd French ReTolotioo. See alio Paley't Moral Philotopfay, B. 6,
ch.7.
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64 ' CONSTITUTION OP THE U. STATES. [bOOK III.
places.* The representation is made up of persons
chosen by electors having very different, and sometimes
very discordant qualifications ; in some cases, property
is exclusively represented ; in others, particular, trades
and pursuits ; in others, inhabitancy and corporate priv-
ileges ; in others, the reverse. In some cases, the rep-
resentatives are chosen by very numerous voters ; in
others, by very, few; in, some cases, a single patron
possesses the exclusive power of choosmg representa-
tives, as in nomination boroughs ; in others, very pop-
ulous cities have no right to choose any representatives
at all ; in some cases, a select body, formmg a very
small part of the inhabitants, has the exclusive right of
choice ; in others, non-residents can control the whole
election ; in some places a half million of inhabitants
possess the right to choose no more representatives,
than are assigned to the most msignificant borough, with
scarcely an inhabitant to point out its local limits.* Yet
this inequality has never, of itself, been deemed an ex-
clusive evil m Great Britain.* And in every system of
reform, which has found public favour in that coimtry,
many of these diversities have been embodied Grom
choice, as important checks upon undue legislation, as
facilitating the representation of different interests, and
1 Paley's Moral Phaosophy, B. 6, ch. 7, p. 380, 381 to 394 ; DeLolme,
Const of England, B. 1, ch. 4, p. 61, 62 ; 1 Kent's Comm. 219; 1 Tuck.
Black. App. 209, 210, 211 ; 1 Wilson's Law Lect 431.
8 Mr. Jefferson, in his Notes on Virginia, insists with great earnest-
ness upon the impropriety of allowing to different counties in that state,
the same number of representatives, without anyregard to their relative
population.* And yet in the new constitution adopted in 1830-1831,
Virginia has adhered to the same system in principle, and ber present
representation is apportioned upon an arbitrary and unequal basil.
3 Burke's Reflections on the French Revolution.
• JeirenoD>tNotM,19S.
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CH. IX.] HOUS£ OF REPRE8EKTATIVE8. 05
different opinions; and as thus securing, by a well-balanc-
ed and intelligent representation of all the various class-
es of society, a permanent protection of the public liber-
ties of the people, and a firm security of the private rights
of persons and property.* Without, therefore, asserting,
that such a mixed representation is absolutely, and un-
der alt circtmistances, the best, it might be safely affirm-
ed, that the existence of various elements in the com-
position of the representative body is not necessarily
inexpedient, imjust, or insecure ; and, in many cases,
may promote a wholesome restraint upon partial plans
of legislation, and ensure a vigorous growth to the gen-
eral interests of the Union. The planter, the farmer,
the mechanic, the merchant, and the manufacturer
might thus be brought to act together, in a body repre-
senting each ; and thus superior intelligence, as well as
mutual good-will and respect, be diffused through the
whole of the collective body.*
^ 585. In the judgment of the convention, this latter
reasoning seems to have obtained a decisive influence,
1 Mr. WUson in his Lectures, considers the inequality of representa-
tion in the house of commons, as a prominent defect in the British gov-
ernment. But his objections are mainlj urged against the mode of ap-
portioning the representation, and not against the qualifications of the
voters.* In the reform now under the consideration of parliament, there
is a very great diversity of electoral qualifications allowed, and appar-
ently supported by all parties. Mr. Burke in his Reflections on the
French Revolution, holds doctrines essentially different in many pointa
from Mr. Wilson. See also in Winne's Eunomus, Dialogue 3, § 18, 19,
20, an ingenious defence of the existing system in Great-Britain.
a See Paley's Moral Philosophy, B. 6, ch. 7, p. 380 ; Id. 394. See also
Franklin's Remarks ; 2 Pitk. Hist 242. — Dr. Paley has placed the in-
equalities of representation in the house of commons in a strong light;
and be has attempted a vindication of it, which, whether satisfactory
or not, is at least urged with great skill and ingenuity of reasoning.
Paley's Moral Philosophy, B. 6, ch, 7, p. 391 to 400. See also 2 Pitk. Hist
242.
* 1 Wilfon'9 Lect. 430 to 433.
VOL. 11. 9
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66 coNSTrruTioir op the it. states, [book hi.
and to have established the final result ; and it was ac-
cordingly declared, in the clause under consideration,
that "the electors in each state shall have the qualifica-
tions requisite for electors of the most numerous branch
of the state legislature." ^ Upon this clause (which was
finally adopted by a unanimous vote) the Federalist has
remarked, " the provision made by the convention ap-
pears to be the best, that lay withm their option. It must
be satisfactory to every state, because it is conformable
to the standard already established by the state itself. It
will be safe to the United States, because, being fixed
by the state constitutions, it is not alterable by the
state governments ; and it cannot be feared, that the
people of the states will alter this part of their constitu-
tions in such a manner, as to abridge the rights secur-
ed to them by the federal constitution.'' * The remark,
in a general sense, is true ; but the provision has not, in
fact, and may not have, all the security against alteration
by the state governments, which is so confidently af-
firmed. At the time, when it was made, Connecticut
and Rhode-Island were acting under the royal charters
of 1662 and 1663; and their legislatures possessed the
power of modifying, from time to time, the right of suf-
fi*age. Rhode-Island yet continues without any written
constitution, unless the charter of 1663 is to be deem-
ed such. In Maryland successive legislatures may
change the form of government ; and in other states
amendments may be, and indeed have been adopted,
1 Journal of Convention, 216, 233.'— The clause, however, did not pass
without opposition ; a motion to strike out was made and negatived, seven
states voting in the negative, one in the affirmative, and one being di-
vided. Journ. of Convention, 7 Aug. p. 233.
9 The Federalist, No. 52. See also 2 £iliot's Debates, 38 ; 2 Wilson's
Law Lect 123, 139, 131.
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CH. IX.] HOUSE OP Il£PR£SENTATiy£8. 67
materially varying the rights of suffrage.* So that ab-
solute stability is not to be predicated of the existing
modes of suffrage ; though there is little practical dan-
ger of any changes, which would work unfavourably to
popular rights.
§ 586. In the third place, the term of service of
representatives. In order to ensure permanent safety to
the liberties of the people, other guards are indispensa-
ble, besides those, which are derived from the exercise of
the right of suffrage and representation. If, when the legis-
lature is once chosen, it is perpetual, or may last during
the life of the representatives; and in case of death, or re-
signation only, the vacancy is to be supplied by the elec-
tion of new representatives ; it is easy to perceive, that
in such cases there will be but a very slight check up-
on their acts, on the part of the people. In such cases,
if the legislative body should be once corrupted, the evil
would be past all remedy, at least without some violent
revolution, or extraordinary calamity.^ But, when dif-
ferent legislative bodies are to succeed each other at
short intervals, if the people disapprove of the present,
they may rectify its faults, by the silent exercise of their
power in the succeeding election. Besides, a legisla-
tive assembly, which is sure to be separated again, and
its members soon return to private life, will feel its own
interests, as well as duties, bound up with those of the
community at large.' It may, therefore, be safely laid
down, as a fundamental axiom of republican govern-
ments, that there must be a dependence on, and re-
sponsibility to, the people, on the part of the represen-
tative, which shall constandy exert an influence upon
1 See 2 Wilson's Law Lect note (d,) 196, 137.
s 1 Black. Comm. 189 ; Montesqaieu's Spirit of Laws, B. 11, ch. 6.
» 1 Black. Comm. 1^.
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68 CONSTITUTION DT THE U. STATES. [bOOK III.
his acts and opinions, and produce a sympathy between
him and his constituents.^ If, when he is once elected,
he holds his place for life, or during good behaviour, or
for a long period of years, it is obvious, that there will
be litde effective control exercised upon him ; and he
will soon learn to disregard the wishes, the interests,
and even the rights of his constituents, whenever they
interfere with his own selfish pursuits and objects.
When appointed, he may not, indeed, consider himself,
as exclusively their representative, bound by their opin-
ions, and devoted to their peculiar local interests,
although they may be wholly inconsistent with the good
of the Union. He ought rather to deem himself a repre-
sentative of the nation, and bound to provide for the
general welfare, and to consult for the general safety.*
But still, in a just sense, he ought to feel his responsi-^
bility to them, and to act for them in common with the
rest of the people ; and to deem himself, in an emphatic
manner, their defender, and their friend.^
§ 687. Frequent elections are unquestionably the
soundest, if not the sole policy, by which this depend-.
1 The Federalist, No. 52, 57.
8 1 Black. Comra. 159. See also Dr. Franklin's Remarks; 2 Pitk.
Hist 242; Rawle on Const 38, ;)9. Bat see I Tucker's Black. ComTti.
App. 193; 4 Elliot's Debates, 209.->Mr. Burke in his Speech to the
Electors of Bristol, in 1774, has treated this subject with great candour,
and dignity, and ability. " Parliament," said he, ** is not a congress of
ambassadors from different and hostile interests, which interests eaph
must maintain, as an agent and advocate, against other agents and ad-
vocates. But parliament is a deliberative assembly of one nation with one
Interest, that of the whole ; where not local purposes, not local prejudi-
eesi ought to guide ; but the general good, resulting from the general
reason of the whole. You choose a member indeed ; but when you have
chosen him, he is not a member of Bristol, but he is a member of parlia-
ment" See, on this subject, 1 Tuck. Black. Comm. App. 193 ; 2 Lloyd's
Deb.inl789,p.]99to217.
9 See Burke's Speech to the Electors of Bristol in 1774.
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CH. IX.] HOUSE OF R£PllJDBE]fTATiy£S. 69
' ence and sympathy and responsibility can be effectual*
ly secured.^ But the question, what degree of frequen-
cy IS best csSculated to accomplish that object is not
susceptible of any precise and universal answer, and
must essentially depend upon very different considera*
tions m different nations, and vary with their size, their
age, their conditions, their institutions, and their local ,
peculiarities.^
§ 688. It has been a current observation, that " where
annual elections end, tyranny begins.'' ' But this re-
mark, like many others of a general nature, is open to
much question. There is no pretence, that there is any
natural connexion between the period of a year, or any
other exact revolution of time, and the political changes
fit for governments or magistrates. Why is the elec-
tion of a magistrate or representative more safe for one
year, than for two years ? For one year, more than for
six months ? For six months, more than for three
months ? It is certainly competent for a state to elect
its own rulers, daily, or weekly, or monthly, or annual-
I Tbe Federalist, No. 52, 57,
s Dr. Paley, with his usual practical sense, has remarked, in regard
to tbe composition, and tenure of office, of the British house of commons,
thatf *' the number, the fortune, and quality of the members ; the variety
of interests and characters among tiiem ; above ail^ the temporary dura-
tion of their power y and the change of men, which every new election
produces, are so many securities to the public, as well against the
Bvbjection of their judgments to any external dictation, as against the
formation of a junto in their own body, sufficiently powerful to govern
their decisions. The representatives are so intermixed with the constit-
uents, and the constituents with the rest of the people, that they can-
not) without a partiality too flagrant to be endured, impose any burthen
upon the subject, in which they do not share themselves. Nor scarce-
ly can they adopt an advantageous regulation, in which their own in-
terests Will not participate of the advantage." Paley's Moral Philosophy,
B. 6, ch. 7.
3 The Federalist, No. 53. See Montesquieu'^ Spirit of Laws, B. 2, ch. 3.
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70 coNSTiTUTioir or the u. statics, [book in.
ly, or for a longer period, if it is deemed expedient. In
this respect, it must be, or ought to be, governed by its
own convenience, interests, and safety. It is, therefore,
a question of sound policy, dependent upon circumstan-
ces, and not resolvable into any absolute elements de-
pendent upon the revolution or retiun of natural sea-
sons.* The aim of every political constitution is, or ought
to be, first to obtain for rulers men, who possess most
wisdom to discern, and most virtue to pursue the com-
mon good of the society ; and, in the next place, to take
the most effectual precautions for keeping them virtuous,
whilst they continue their public trust.* Various means
may be resorted to for this purpose ; and doubdess one
of the most efficient is the frequency of elections. But
who is there, that will not perceive, upon the slightest
examination of the subject, what a wide space there
is for the exercise of discretion, and for diversity of
judgment.
§ 689. Without pretending to go into a complete
survey of the subject, in all its bearings, the fi*equency
of elections may be materially affected, as matter of
policy, by the extent of the population and territory of
a country, the concentration or sparseness of the popu-
lation, the nature of the pursuits, and employments, and
engagements of the people ; and by the locsd and politi-
cal situation of the nation in regard to contiguous na-
tions. If the government be of small extent, or be con-
centrated in a smgle city, it will be far more easy for
the citizens to choose their rulers frequendy, and to
change them without mischief, than it would be, if the
territory were large, the population sparse, and the means
1 The Federalist, No. 52, 53 ; Montesquieu's Spirit of Laws, B. 2, ch. 3 ;
1 Elliot's Debates, 30, 31 , 39.
s The Federalist, No. 57 ; 2 Elliot's Debates, 42.
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CH. IX.] HOUSE OF REP^SENTATIYES. 71
of intercourse few and liable to interruption. If all the
inhabitants, who are to vote, reside in towns and viUages
there will be little inconvenience in assembling together
at a short notice to make a choice. It will be far other-
wise, if the inhabitants are scattered over a large territo-
ry, and are engaged in agricultural pursuits, like the
planters and farmers of the southern and western states,
who must meet at adistance from their respective homes,
and at some common place of assembling. In cases of
this sort, the sacrifice of time necessary to accomplish
the object, the expenses of the journey, the imperfect
means of communication, the slow progress of inter-
changes of opinion, would naturally diminish the exer-
cfae of the* right of suffrage. There would be great
danger, under such circumstances, that there would
grow up a general indifference or inattention to elec-
tions, it they were frequent, since they wouM create
litde interest, and would involve heavy charges and
burthens. The nature of the pursuits and employments
of the people must also have great influence in settling
the question. If the mass of the citizens are engaged
m employments, which take them away for a long peri-
od from home, such as employments in the whale and
cod fisheries, in the fur-trade, in foreign and distant
commerce, in periodical caravans, or in other pursuits,
which require constant attention, or long continued lar
hours at particular seasons ; it is obvious, that frequent
elections, which should interfere with their primary m-
terests and objects, would be at once mconvenient, op-
pressive, and unequal. They would enable the few to
obtain a complete triumph and ascendency in the af-
fairs of the state over the many. Besides, the frequen-
cy of elections must be subject to other considerations,
affecting the general comfort and convenience, as well
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72 COHSTITUTIOK OF THE V. STATES. [bOOK III.
of rulers, as of electors. In the bleak regions of Lapland,
and the farther north, and m the sultry and protracted
heats of the south, a due regard must be had to the
health of the inhabitants, and to the ordinary means of
travelling. If the territory be large, the representatives
must come Jrom great distances, and are hable to be
retarded by all the varieties of climate, and geological
features of the country ; by drifts of impassable snows;
by sudden inundations ; by chains of mountains ; by
extensive prairies; by numerous streams; by sandy
deserts.^
§ 690. The task of legislation, too, is exceedingly
different in a small state, from what it is in a large one ;
in a state engaged m a single pursuit, or living in pas-
toral simplicity, from what it is in a state engaged in
the infinitely varied employments of agriculture, manu-
facture, and commerce, where enterprise and capital
rapidly circulate ; and new legislation is constantly re-
quired by the new fortunes of society. A single week
might suffice for the ordinary legislation of a state of
the territorial extent of Rhode-Island ; while several
months would scarcely suffice for that of New-York.
In Great-Britain a half year is consumed in legislation
for its diversified interests and occupations ; while a
week would accomplish all, that belongs to that of Lap-
land or Greenland, of the narrow republic of Geneva,
or of the subordinate principalities of Germany. Athens
might legislate, without obstructing the daily course of
common business, for her own meagre territory ; but
when Rome had become the mistress of the world, the
year seemed too short for all the exigencies of her
sovereignty. When she deliberated for a world, she
1 1 Elliot's Debates, 33, Ames's Speech.
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CBU IX.] HOUSE OF REPRESXlTTAnyXS. 73
felt, that legislation, to be wise or safe, must be slow
and cautious ; that knowledge, as well as power, was
indispensable for the true government of her ppoyinces.
^591. Again; the local position of a nation in n^
gard to other nations may recpiire very different courses
of legislation, and very different intervals of etoctionSy
from what would be dictated by a sense of its own in-
terest and convenience imder other circumstances. If
it is surrounded by powerful and warlike neighbours, its
own government must be invested with proportionately
prompt means to act, and to legislate, in order to repel
aggressions, and secure its own rights. Frequent
changes in the public councils might not oatf leave it
exposed to the hazard of having no efficient body in
existence to act upon any sudden emergency, but also,
by the fluctuations of opinion, necessarily growing out
of these changes, introduce imbecility, irresolution, and
the want of due information into those councils. Men,
to act vnth vigour and effect, must have time to mature
measures, and judgment and experience^ as to the best
method of applying thenu They must not be harried
on to theair conclusions by the passions, or the fears of
the multitude. They must deliberate, as well as re-
solve. If the power drops from their hands before they
have an opportunity to carry any system into full effect,
or even to put it on its trial, it is impossible, that foreign
nations should not be able, by uitrigues, by fabe alarms,
and by ccHTupt influences, to defeat the wbest measures
of the best patriots.
§ 592. One other con^deration of a general nature
deserves attention. It is, that while^ on the one hand,
constantly reciuring elections afford a great security to
puWic liberty, they are not, on the other hand, without
.some dangers and inconveniences of a formidable
VOL. IX. 10
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74 CONSTITUTION OF THE U. STATES. [bOOK HI.
nature. The very firequency of elections has a ten-
dency to create agitations and dissensions in the pub-
lic mind; to nourish factions^ and encourage restless-
ness, to favour rash innovations in domestic legis-
lation and public policy ; and to produce violent and
sudden changes in the administration of public af-
fairs, founded upon temporary excitements and pre-
judices.*
§ 593. It is plain, that some of the considerations,
which have been stated, must apply with very different
force to the condition and interests of different states ;
a^d they demonstrate, if not the absurdity, at least the
impolicy of laying down any general maxim, as to the
frequency of elections to legislative, or other offices.*
There is quite as much absurdity in laymg down, as a
general rule, that where annual elections end, tyranny
begins, as there is in saymg, that the people are free
only while they are choosing their representatives, and
slaves during the whole period of their service.
§ 694. If we examine this matter by the light of
history, or at feast of that portion of it, which is best
entided to instruct us on the point, it will be found,
that there is no uniformity of practice, or principle,
among free nations in regard to elections. In England
it is not easy to trace out any very decided course.
The history of parliament, after magna charta, proves,
that that body had been accustomed usually to assemble
once a year ; but, as these sessions were dependent
upon the good pleasure and discretion of the crown,
very long and inconvenient intermissions occasionally
1 See Mr. Ames's Speech, 1 Elliot's Debates, 31, 33 ; Ames's Works,
20,24.
9 Montesquieu's Spirit of Laws, B. 2, ch. 3 ; I Elliot's Debates, 30 to
42.
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CH. IX.] HOUSE OF R£PR£8SNTATIV£S. 76
occurred, from royal contrivance, ambition, or policy.*
Bat, even when parliament was accustomed to sit every
year, the members were not chosen every year. On
the contrary, as the dissolution of parliament was solely
dependent on the will of the crown, it might, and for-
merly it sometimes did happen, that a single pariia-
ment lasted through the whole life of the king, who
convened it* To remedy these grievances, it was
provided by a statute, passed in the reign of Charies
the Second, that the intermissions should not be pro-
tracted beyond the period of three years ; and by a
subsequent statute of William and Mary, that the same
parliament should not sit longer than three years, but
be, at the end of that period, dissolved, and a new one
elected. This period was, by a statute of (Jeorge the
Fu^t, prolonged to seven years, after an animated de»
bate; and thus septennial became a substitute for
triennial parliaments.' Notwithstanding the constantly
increasing influence of the house of commons, and its
popular cast of opinion and action, more than a century
has elapsed without any successful effort, or even any
general desire, to change the duration of parliament.
So that, as the English constitution now stands, the
parliament must expire, or die a natural death, at the
end of the seventh year, and not sooner, unless dis-
solved by the royal prerogative.^ Yet no man, tolera-
bly well acquainted with the history of Great Britain
for the last century, would venture to affirm, that the
people had not enjoyed a higher degree of liberty and
II - _
1 The Federalist, No. SSL
9 1 Black. Comm. 189, and note.
3 1 Black. Corora. 189; Tbe Federalist, No. 52, 53; 1 Elliot's De-
bates, 37, 39 ; 2 Elliot's Debates, 42.
4 1 Black. Comm. 189 ; The Federalist, No. 52-
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76 CONSTITUTION or THE U. STATES. [BOOK III.
influence in all the proceedings of the government, than
ever existed in any antecedent period.
§ 595. If we bring our inquiries nearer home^ it will
be found, that the history of the American colonies be-
fore the revolution affords an equally striking proof of
the diversity of opinion and usage. It is very wcJl
known, that the principle of representation in one branch
of the legislature was (as has been already stated)
established in all the colonies. But the periods of
election of the representatives were very different
They varied fix)m a half-year to seven years. In Vir-
ginia the elections were septennial; in North and South-
Carolina, biennial ; in Massachusetts, annual ; in Con*
necticut and Rhode-Island, semi-annuaL^ It has been
very justly remarked by the Federalist, that there is
not any reason to mfer, from the spirit and conduct of
the representatives of the people prior to the revolu*
tion, that biennial elections would have been dangerous
to the public liberties. The spirit, which every where
displayed itself at the commencement of the struggle,
and which vanquished the obstacles to independence,
is the best of proofs, that a sufficient portion of liberty
had been every where enjoyed to inspire both a sense
of its worth, and a zeal for its proper enlargement.
This remark holds good, as well with regard to the
then colonies, whose elections were least frequent, as
to those, whose elections were most frequent. Vir-
ginia was the colony, which stood first in resisting the
parliamentary encroachments of Great Britam ; it was
the first also in espousing, by a public act, the resolution
of independence. Yet her house of representatives
1 The Federalist, ^o. 52 ; 1 Elliot's Debates, 41,43; 2 Elliot's De-
bates, 42 ; 3 Elliot's Debates, 4a
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GH. IX.] HOI78£ OF RSPRESSITTATiyiS. 77
was septenniaL^ When, after the revolutioDy the states
freely framed and adopted theu* own constitutioDS of
gOTernment, a similar, though not so marked a diversity
of opinion, was exhibited. In Connecticut, untU her
recent constitution, the representatives were chosen
semi-annually ; in Rhode-Island they are still chosen
semi-annually ; in South-Carolina, Tennessee, Missouri,
Illinois, and Louisiana they are chosen biennially ; and
in the rest of the states annually.' And it has been
justly observed in the Federalist,' that it would not
be easy to show, that Connecticut or Rhode-Island is
better governed, or enjoys a greater share of rational
liberty, than Soutb^CaroUna, (or any of the other states
having biennial elections ;) or, that either the one or the
other of these states is distmguished, in these respects,
and by these causes, from the states, whose elections
are dijQferent from both.
§ 596. These remarks are sufficient to establish the
(utility of the maxim alluded to, respecting the value of
annual elections. The question, how frequent elections
should be, and what should be the term of service of
representatives, cannot be answered in any universal
form, applicable to all times, and all nations.^ It is
very complex in its nature, and must ultimately resolve
itself into a question of policy and sound discretion,
with reference to the particular condition and circum-
stances of each nation, to which it is sought to be
applied. The same fundamental principles of govern-
ment may require very different, if not entirely oppo-
site practices in different states. There is great wis-
1 The Federalist, No. 52.
* Dr. Lieber's E^cjcL Americana, art ContlUuiums of tkt UmUd
Slates ; 3 Elliot's Debates, 260 ; 1 Kent Comm. 215.
' The Federalist, No. 53 ; 3 Elliot's Debates, 260.
4 1 EUiot's Debates, 40, 41, 42.
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78 CONSTITtJTION OF THE U. STATES. [bOOK III.
dom in the observations of one of our eminent states-
men on this subject. "It is apparent," said he, "that
a delegatiQn. for a very short period, as for a single day,
would defeat the design of representation. The elec-
tion in that case would not seem to the people to be of
any importance, and the person elected would think as
lighdy of his appointment. The other extreme is
equaUy to be avoided. An election for a long term of
years, or for life, would remove the member too far
from the control of the people, would be dangerous to
liberty, and in fact repugnant to the purposes of the
delegation. The truth, as usual, is placed somewhere
between the extremes, and, I believe, is included iii
this proposition; the term of election must be so long,
that the representative may understand the interests of
the people ; and yet so limited, that his fidelity may be
secured by a dependence upon theu' approbation.'* *
§ 697. The question, then, which was presented to
the consideration of the convention, was, what duration
of office, on the part of the members of the house of
representatives,^was, with reference to the structure of
the other branches of the legislative department of the
general government, best adapted to preserve the pub-
lic liberty and to promote the general welfare. I say,
with reference to the structure of the other branches
of the legislative department of the general govern-
ment, because it is obvious, that the duration of office
of the president and senate, and the nature and extent
of the powers to be confided to congress, must most
materially aflfect the decision upon this point Abso-
lute unanimity upon such a subject could hardly be
expected ; and accordingly it vdll be found, that no
i Mr. Ames's Speech, 1 Elliot's Debates, 90, 81 ; Ames's Works, 21 ;
2 EUiot's Debates, 44, 46.
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CH. IX.] H0U8£ OF REPRESEITTATiyES. 79
inconsiderable diversity of opinion was exhibited in the
discussions in the convention. It was, in the first in-
stance, decided in a committee of the whole, that the
period should be three years, seven states voting in the
affirmative, and four in the negative.* That period was
afterwards struck out by a vote of the convention, seven
states voting in the affirmative, three in the negative,
and one being divided, and the word " twp*' was unani-
mously inserted in its stead.* In the subsequent re-
vision the clause took the shape, in which it now stands
m the constitution.
§ 598. The reasons, which finally prevailed in the
convention and elsewhere in favour of biennial elections
in preference to any other period, may be arranged
under the following heads :
§ 599. In the first place, an argument might prop-
erly be drawn firom die extent of the country to be
governed. The territorial extent of the United States
would require the representatives to travel from great
distance*s, and the arrangements, rendered necessary by
that circumstance, would furnish much more serious ob-
jections with men fit for this service, if limited to a single
year, than if extended to two years.' Annual elections
might be very well adapted to the state legislatures
from the faciUty of convening the members, and from
the familiarity of the people with all the general objects
of local legislation, when they would be highly inconve-
nient for the legislature of the Union. If, when con-
vened, the term of congress was of short duration, there
would scarcely be time properly to examine and mature
1 Journal of the Convention, p. 67, 115, 1 16, 135; 4 Elliot's Debates,
(Yates's Minutes,) 70, 7i.
9 Journal of the Convention, p. 14] , 207, 216 ; 1 Elliot's Debates, 30 ;
4 £!lliot's Debates, (Yates's Minutes,) 91, 03.
a The Federalist, No. 53 ; 1 Elliot's Debates, 30, 40, 41, 43.
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80 CONSTITimoir OF TH£ IT. STATSSk [bOOK Ul.
measures. A new election might intervene bef<Nre
there had been an opportunity to interchange opinions
and acquire the information indispensable for wise and
salutary action.^ Much of the business of the national
legislature must necessarily be postponed beyond a
single session ; and if new men are to come every year,
a great part of the information already accumulated will
be lost, or be unavoidably open for re-exammation be-^
fore any vote can be properly had.
§ 600. In the next place, however well founded the
maxim might be, that where no other circumstances
affect the case, the greater the power is, the shorter
ought to be its duration ; and conversely, the smaller
the power, the more safely its duration may be pro-
tracted ; ' that maxim, if it applied at all to the govern-
ment of the Union, was favourable to the extension of
the period of service beyond that of the state legisla-
tures. The powers of congress are few and limited,
and of a national character ; those of the state legi^a-
tures are general, and have few positive limitations* If
annual elections are safe for a state ; biennial elections
would not be less safe for the United States. No just
objection, then, could arise from this source, upon any
notion, that there would be a more perfect security for
public liberty in annual than in biennial elections.
^601. But a far more important consideration grows
out of the nature and objects of the powers of congress.
The aim of every political constitution is, or ought to
be, first, to obtain for nilers men, who possess most
wisdom to discern, and most virtue to pursue, the com-
mon good of society ; and, in the next place, to take
the most effectual precautions for keeping them virtu-
1 The Federalist, No. 53 ; 1 Elliot's Debates, 40, 41, 42.
9 The Federalist, No. 53 ; Moniesqaieu's Spirit of Laws, B. 3, cb. 3.
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CH. IX.] HOUSE OF REPRESElfTATiyES. 81
ous, whQst they continue to hold their public trust
Frequent elections have, without question, a tendency
to accomplish the latter object But too great a fre-
quency will, almost invariably, defeat the former
object, and, in most cases, put at hazard the latter.
As has been already intimated, it has a tendency to in-
troduce faction, and rash counsels, and passionate ap-
peals to the prejudices, rather than to the sober judgment
of the people. And we need not to be reminded, that
faction and enthusiasm are the instruments, by which
popular governments are destroyed.* It operates alsO|
as a great discouragement upon suitable candidates
oflFering themselves for the public service. They can
have little opportunity to establish a solid reputation, as
statesmen or patriots, when their schemes are liable to
be suddenly broken in upon by demagogues, who may
create injurious suspicions, and even displace them from
office, before their measures are fably tried.* And th^y
are apt to grow weary of continued appeals to vindicate
their character and conduct at the polls, since success,
however triumphant, is of such short duration, and con-
fidence is so easily loosened. These considerations,
which are always of some weight, are especially appli-
cable to services in a national legislature, at a distance
from the constituents, and in cases, where a great varie-
ty of information, not easily accessible, is indispensable
to a right understanding of the conduct and votes of
representatives.
§ 602. But the very nature and objects of the na-
tional government require far more experience and
knowledge, than what may be thought requisite in the
1 The Federalist, No. 57; 1 Kent's Comm. 215.
2 Ames's Speech ; 1 Elliot's Debates, 3:5.
3 1 Kent's Comm. 215.
VOL. II. 1 1
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82 CONSTITUTION OF THE V. STATES. [bOOK III.
members of a state legislature. For the latter a knowl-
edge of local interests and opinions may ordinarily suf-
fice. But it is far different with a member of congress.
He is to legislate for the interest and welfare, not of
one state only, but of all the states. It is not enough,
that he comes to the task with an upright intendon and
sound judgment, but he must have a competent degree
of knowledge of all thrf subjects, on which he is c^ed
to legislate ; and he must have skill, as to the best mode
of applymg it. The latter can scarcely be acquired, but
by lon^ experience and training in the national coun-
cUs. The period of service ought, therefore, to bear
some proportion to the variety of knowledge and prac-
tical skill, which the duties of the station demand.^
^ 603. The most superficial glance at the relative
duties of a member of a state legislature and of those
of a member of congress, will put this matter in a strik-
ing light In a single state, the habits, manners, insti-
tutions, and laws, are uniform, and all the citizens are
more or less conversant with them. The relative bear-
ings of the various pursuits and occupations of the people
are well understood, or easily ascertained. The gen-
eral affairs of the state lie in a comparatively narrow
compass, and are daily discussed and examined by
those, who have an immediate interest in them, and by
frequent communication with each other can inter-
change opinions.^ It is very different with the general
government. There, every measure is to be discussed
with reference to the rights, interests, and pursuits of
all the states. When the constitution was adopted,
there were thirteen, and there are now twenty -four
1 The Federalist, No. 53; 1 Elliot's Debates, 30, 37, 39, 40, 41 ; Id-
230; a ElUot'8 Debates, 42 ; 1 Kent's Coinin.2I5.
s The Federalist, No. 53, 56.
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CH. IX.] HOUSE OF REPRESENTATIVES. 88
States, having different laws, institutions, emplojonents,
products, and climates, and many artificial, as well as
natural differences m the structure of society, growing
out of these circumstances. Some of them are almost
wholly agricultural ; some commercial ; some manufac-
turing ; some have a mixture of all ; and in no two of
them. are there precisely the same relative adjustments
of all these interests. No legislation for the Union can
be safe or wise, which is not founded upon an accurate
knowledge of these diversities, and their practical influ*
ence upon public measures. What may be beneficial
and politic, with reference to the interests of a smgle
state, may be subversive of those of other states. A
regulation of commerce, wise and just for the commer-
cial states, may strike at the foundation of the prosperi-
ty of the agricultural or manufacturing states. And, on
the other hand, a measure beneficial to agriculture or
manufactures, may disturb, and even overwhelm the
shipping interest. Large and enlightened views, com-
prehensive information, and a just attention to the local
^peculiarities, and products, and employments of differ-
ent states, are absolutely indispensable qualifications (ot
a member of congress. Yet it is obvious, that if very
short periods of service are to be allowed to members
of congress, the continual fluctuations in the public
coimcils, and the perpetual changes of members will be
very unfavourable to the acquirement of the proper
knowledge, and the due application of it for the public
welfare. One set of men will just have mastered the
necessary information, when they will be succeeded by
a second set, who are to go over the same grounds, and
then are to be succeeded by a third. So, that inexpe-
rience, instead of practical wisdom, hasty legislation, in-
stead of sober deliberation, and imperfect projects*
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84 CONSTITUTION OF THE U. STATES. [bOOK III.
instead of well constructed systems, would characterize
the national government^
§ 604. Congress has power to regulate commerce
witii foreign nations and among the several states. How
can foreign trade be properly regulated by uniform laws
without (I do not say some acquaintance, but) a large
acquamtance with tiie commerce, ports, usages, and
regulations of foreign states, and with the pursuits and
products of the United States? How can trade be-
tween the different states be duly regulated, without an
accurate knowledge of their relative situation, and cli-
mate, ^d productions, and facilities of intercourse.'
Congress has power to lay taxes and imposts ; but how
can taxes be judiciously imposed, and effectively col-
lected, unless they are accommodated to the local cir-,
cumstances of the several states 1 The power of taxa-
tion, even with the purest and best intentions, might,
without a thorough knowledge of the diversified inter-
ests of the states, become a most oppressive and ruinous
engine of power.' It is true, that difficulties of this sort,
will occur more frequently in the first operations of the
government, than afterwards.^ But in a growing com-
munity, like that of the United States, whose popula-
tion has already mcreased from three to thirteen mil-
lions within forty years, there must be a perpetual
change of measures to suit the new exigencies of agri-
culture, commerce, and manufactures, and to ensure
the vital objects of the constitution. And, so far is it
fix)m being true, that the national government has by
its familiarity become more simple and facile in its ma-
chmery and operations, that it may be affirmed, that a
i The Federalist, No. 53, 56.
« M. 3 Id. 4 Id.
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CH« IX«] HOUSE OF REPRESEXTATIVES* 85
far more exact and comprehensive knowledge , is now
necessary to preserve its adjustments, and to carry on
its daily operations, than was required, or even dream-
ed of, at its first institution. Its very success, as a plan
of government, has contributed, in no small degree, to
give complexity to its legislation. And the important
changes in the world during its existence has requir«
ed very many developements of its powers and duties,
which could hardly have occurred, as practical truths to
its enlightened founders.
§ 605. There are other powers belonging to the na-
tional government, which require qualifications of a high
character. They regard our foreign intercourse and
diplomatic policy. Although the house of representa-
tives does not direcdy participate in foreign negotiations
and arrangements ; yet, fix>m the necessary connexion
between the several branches of public affairs, its co-
operation with the other departments of the govern-
ment will be often indispensable to carry them into full
effect Treaties with foreign nations will often require
the sanction of laws, not merely by way of appropria-
tions of money to comply with their stipulations ; but
also to provide suitable regulations to give them a prac-
tical operation. Thus, a purchase of territory, like that
of Louisiana, would not only require the house of repre-
sentatives to vote an appropriation of money ; and a
treaty, containing clauses of indemnity, like the British
treaty of 1794, in like manner require an appropriation
to give it effect ; but commercial treaties, in ^n especial
manner would require many variations and additions to
the existmg laws in order to adjust them to the general
system, and produce, where it is intended, a just re-
ciprocity.* It is hardly necessary to say, that a com-
1 The Federalist, No. S3.
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86 CONSTITUTION OP THE U. STATES. [bOOK III,
petent knowledge of the law of nations is mdispensable
to every statesman ; and, that ignorance may not only
involve the nation in embarrassing controversies with
other nations ; but may also involve it in humiliating
sacrifices. Congress aJone is entrusted with the pow-
er to declare wan What would be said of representa-
tives called upon to exercise this ultimate appeal of
sovereignty, who were ignorant of the just rights and
duties of belligerent and neutral nations ? *
§ 606. Besides ; the whole diplomacy of the execu-
tive department, and all those relations with mdepen-
dent powers, which connect themselves with foreign
intercourse, are so intimately blended with the proper
discharge of legislative duties, that it is impossible, that
they should not be constantiy brought under review in
the public debates. They must fi'equently furnish mat-
ter for censure or praise ; for accusation or vindication ;
for legislative checks, or legislative aids ; for powerful
appeals to popular favour, or popular resentment ; for
the ardent contests of party ; and even for the graver
exercise of the power of impeachment.
§ 607. And this leads us naturally to another remark ;
and that is, that a due exercise of some of the powers
confided to the house of representatives, even in its most
narrow functions, require, that the members should at
least be elected for a period of two years. The power
of impeachment could scarcely be exerted with efiSect
by any body, which had not a legislative life of such a
period. It would scarcely be possible, in ordinary cases,
to begin and end an impeachment at a single annual
session. And the effect of change of members during
its prosecution would be attended with no inconsidera-
ble embarrassment and inconvenience. If the power
1 The Fcderulist, No. 53.
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CR. IX.J HOUSE OF REPRESENTATIVES. 87
is ever to be exerted, so as to bring great offenders to
justice, there must be a prolonged legislative term of
office, so as to meet the exigency. One year will not
suffice to detect guilt, and to pursue it to conviction.*
§ 608. Again ; the house of representatives is to be
the sole judge of the elections of its own members.
Now, if but one legislative session is to be held in a
year, and more than one cannot ordinarily be presumed
convenient or proper, spurious elections cannot be in-
vestigated and annulled in time to have a due effect.
The sitting member must either hold his seat during
the whole period of the investigation, or he must be
suspended during the same period. In either case the
public mischief will be very great The imiform prac-
tice has been to allow the member, who is retmned, to
hold his seat and vote, until he is displaced by the or-
der of the house, after full mvestigation. If, then, a
return can be obtained, no matter by what means, the
irregular member is sure of holding his seat, until a
long period has elapsed, (for that is indispensable to
any thorough investigation of facts arising at great dis-
tances ;) and thus a very pernicious encouragement is
given to the use of unlawful means for obtaining irreg-
ular returns, and fraudulent elections.*
§ 609. There is one other consideration, not without
its weight in all questions of this nature. Where elec-
tions are very frequent, a few of the members, as hap-
pens in all such assembles, will possess superior talents;
will, by frequent re-elections, become members of long
standing ; will become thoroughly masters of the public
business ; and thus will acquire a preponderating and
undue influence, of which they will naturally be dis-
1 1 Elliot's Debates, 34 ; Mr. Ames's Speech.
8 The Federalist, No. 53.
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88 CONSTITUTION OP THE U. STATES. [bOOK Til.
pose(J to avail themselves. The great bulk of the house
Wai be composed of new members, who will necessa-
rily be inexperienced, diflSdent, and undisciplined, and
thus be subjected to the superior ability and informa-
tion of the veteran legislators. If biennial elections
would have no more cogent effect, than to diminish the
amount of this inequality ; to guard unsuspecting confi-
dence agamst the snares, which may be set for it ; and
to stimulate a watchful and ambitious responsibility, it
would have a decisive advantage over mere annual
elections.^
§ 610. Such were some of the reasons, which pro-
duced, on the part of the fi-amers of the constitution,
and ultimately of the people themselves, an approbation
of biennial elections. Experience has deiponstrated
the sound policy and wisdom of the provision. But
looking back to the period, when the constitution was
upon its passage, one cannot but be struck with the
alarms, with which the public mind was on this subject
attempted to be disturbed. It was repeatedly urged in
and out of the state conventions, that biennial elections
were dangerous to the public liberty ; and that con-
gress might perpetuate itself, and reign with absolute
power over the nation.*
§ 611. In the next place, as to the qualifications of
the elected. The constitution on this subject is as
follows:' "No person shall be a representative, who
" shall not have attained to the age of twenty-five years,
" and been seven years a citizen of the United States ;
1 The Federalist, No. 53. See also I Tucker's Black. Comm. App.
229 ; 2 Wilson's Law Lectures, 151.
9 J Elliot's Debates, 28, 37, 38, 43; Id. 217.
9 Art 1) § 2, paragraph 3.
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OH. IX.] HOUSE OF RfiPRESSNTATtVES. 80
'^ and who shall not, when elected, be an inhabitant of
" that state, in which he shall be chosen.^
^612. It is obvious, that the inquiry, as to the due
qualifications of representatives, like that, as to the due
qualifications of electors in a government, is susceptible,
in its own nature, of very different answers, according to
the habits, institutions, interests, and local peculiarities
of different nations. It is a point, upon which we can
arrive at no universal rule, which will accommodate
itself to the welfare and wants of every people, with the
same proportionate advantages. The great objects
are, or ought to be, to secure, on the part of the repre-
sentatives, fidelity, sound judgment, competent infor-
mation, and mcorruptible independence. The best
modes, by which these objects can be attained, are mat-
ters of discussion and reasoning, and essentially depen-
dent upon a large and enlightened survey of the human
character and passions, as developed in the different
stages of civilized society. There is great room, there-
fore, for diversities of judgment and qpinion upon a
subject so comprehensive and variable in its elements.
It would be matter of surprise, if doctrines essentially
different, nay, even opposite to each other, should not;
under such circumstances, be maintained by political
writers, equally eminent and able. Upon questions of
civil policy, and the fundamental structure of govern-
ments, there has hitherto been too little harmony (rf
opinion among the greatest men to encourage any hq>e,
that the future will be less finiitfiil in dissonances, than
the past In the practice of governments, a veiy great
diversity of qualifications has been insisted on, as pre-
requisites of oflice ; and this alone would demonstrate,
that there was not admitted to exist any ccnnmc^ stan-
VOL. II. 12
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90 CONSTITUTION OF THE U. STATES. [bOOK III.
dard of superior excellence, adapted to all ages, and all
nations.
^613. In Great-Britain, besides those negative quali-
fications, which are founded m usage, or positive law,
such as the exclusion of persons holding certain offices
and pensions, it is required, that every member for a coun-
ty, or knight of a shire, (as he is technically called,) shall
have a clear estate of freehold, or copyhold, to the value
of .£600 sterling per annum ; anji every member for a
city or borough, to the value of <£300, except the eldest
sons of peers, and of persons qualified to be knights of
shires, and except the members of the two universities.*
. ^614. Among the American, colonies antecedent to
the revolution, a great diversity of qualifications existed;
and the state constitutions, subsequently formed, by no
means lessen that diversity. Some insist upon a fi'ee-
hcdd, or other property, of a certain value ; others re-
quire a certain period of residence, and citizenship only;
others require a freehold only ; others a payment of
taxes, or an equivalent ; others, again, mix up all the
various qualifications of property, residence, citizenship,
and taxation, or substitute some of these, as equivalents
for others.*
^615. The existing qualifications in the states being
then so various, it may be thought, that the best course
would have been, to adopt the rules of the states re-
spectively, in regard to the most numerous branch of
their own legislatures. And this course might not have
been open to serious objections. But, as the qualifica-
tions of members were thought to be less carefully de-
fined in the state constitutions, and more susceptible of
^ 1 Black. Comm. 176. See 4 Instit 46 to 48.
s Dr. Liebei;^ EncycL Americana, art CmHUtUumi of the UniUd
States.
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CH, IX.] HOUSE OP REPRSSENTATITES. 91
uniformity, than those of the electors, the subject was
thought proper for regulation by the convention.* And
it is observable, that the positive qualifications are few
and simple. They respect only age, citizenship, and
inhabitancy.*
§ 616. First, in regard to age. The representative
must have attained twenty-five years. And certainly
to this no reasonable objection can be made.* If expe-
rience, or wisdom, or knowledge be of value in the na-
tional councils, it can scarcely be pretended, that an
earlier age could afford a certain guaranty for either.
That some qualification of age is proper, no one will
dispute. No one will contend, that persons, who are
minors, ought to be eligible ; or, that those, who have
not attained manhood, so as to be entitled by the com-
mon law to dispose of their persons^ or estates, at
their own will, would be fit depositaries of the authority
to dispose of the rights, persons, and property of others.
Would the mere attainment of twenty-one years of age
be a more proper qualification? All just reasomng
would be against it. The characters and passions of
young men can scarcely be understood at the moment
of their majority. They are then new to the rights of
self-government; warm in their passions; ardent in
their expectations ; and, just escaping from pupilage,
are strongly tempted to discard the lessons of caution,
which riper years inculcate. What they will become,
remams to be seen ; and four years beyond that period
is but a very short space, in which to try their virtues,
develope their talents, enlarge their resources, and give
them a practical insight into the busmess of life ade-
1 The Federalist, No. 2d5. > 1 Tucker's Black. Comm. App. 1^.
d 1 Tucker's Black. Comm. App. 313, 314 ; 2 Wilson's Law Lect 139,
140.
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92 OOXSTITUTION OF THE U. STATES. [bOOK III.
quate to their own immediate wants and duties. Can
ttie interests of others be safely confided to those, who
have yet to learn how to take care of their own ? The
British constitution has, indeed, provided only for the
members of the house of commons not being minors ; *
and illustrious instances have occurred to show, that
great statesmen may be formed even during their mmor-
ity. But such mstances are rare, they are to be looked at
as prodigies, rather than as examples ; as the extraordi*
nary growth of a peculiar education and character, and
a hot-bed precocity in a monarchy, rather than as the
sound and thrifty growth of the open air, and the
bracing hardihood of a republic. In the convention this
qualification, as to age, did not pass without a struggle.
It was originally carried by a vote of seven states
against three, one being divided ; though it was ulti-
mately adopted without a division.' In the state con-
ventions it does not seem to have formed any impor-
tant topic of debate.^
1 1 Hlaok. Comm, 16S, 173, 175 ; 4 lostit 46, 47.
s Journal of Convention, June 22, p. 143; Id. Ang. 8, p. 235 ; 4 Elli-
ot's Debates, (Yates's Minutes,) 94.
9 Lork €k>ke has with much gravity enumerated the proper quallfi-
cationa of a pariiameotsnan, drawing the resemblances from the profh
erties of the elephant First, that he should be without gaU ; tlwt is,
without malice, rancour, heat, and ehvy. Secondly, that he should be
eonstant, inflexible, and not to be bowed, or turned from the right, either
for fear, reward, or fkvour, nor in judgment respect persons. Thirdly,
that he should be of a ripe memory, that remembering perils past, he
might remember dangers to come. Fourthly, that though he be of the
greatest strength and understanding, yet he be sociable, and go in com-
panies ; and fifthly, that he be philanthropic, showing the way to every
man."^ Whatever one may now think of this quaint analogy, these qual-
ities would not, in our day, be thought a bad enumeration of the proper
qualities of a good modem member of parliament, or congress.
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OH. IX.] HOUtfi OF RSPRESSNTATIYSS. 93
§ 617. Secondly, in regard to citizenship. It is
required, that the representative shall have been a
citizen of the United States seven years. Upon the
propriety of excluding aliens from eligibility, there
could scarcely be any room for debate; for there
ceuld be no security for a due administration of any
government by persons, whose interests and con-
nexions were foreign, and who owed no permanent
allegiance to it, and had no permanent stake in its
measures or operations. Foreign influence, of the
most corrupt and mischievous nature, could^not fail to
make its way into the public councils, if there was no
guard against the introduction of alien representatives.^
It has accordingly been a fundamental policy of most, if
not of all free states, to exclude all foreigners from hold-
ing offices in the state. The only practical question
would seem to be, whether foreigners, even after natu*
ralization, should be eligible as representatives ; and if
so, vehat was a suitable period of citizenship for the al-
lowance of the privilege. In England, all aliens born,
unless naturalized, were c»iginally excluded from a
seat in parliament ; and now, by poi^tive legislation, no
alien, though naturalized, is capable of being a member
of either house of parliament^ A diflFerent course,
naturaUy arising from the circumstances of the country,
was adopted in the American cdonies antecedent to
the revcdution, with a view to invite emigrations, and set-
tlements, and thus to facilitate the cultivation of their
wild and waste lands. A similar policy had smce
pervaded the state governments, and had been attend-
ed with so many advantages, that it would have been
1 The Federalist, Na 63.
s 1 Black. Comm. 162, 175 ; 4 Inst 46.
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94 OOXSTITUTIOX OF THE V. STATES. [BOOK III.
impracticable to enforce any total exclusion of natural-
ized citizens from office. In the convention it was
originally proposed, that three years' citizenship should
constitute a qualification ; but that was exchanged for
seven years by a vote of ten states to one.* No ob-
jection seems even to have been suggested against
this qualification ; and hitherto it has obtained a gen-
eral acquiescence or approbation. It certainly sub-
serves two important purposes. 1. That the constit-
uents have a full opportunity of knowing the character
and merits of their representative. 2. That the repre-
sentative has a like opportunity of learning the charac-
ter, and wants, and opinions of his constituents.'
§ 618. Thirdly, in regard to inhabitancy. It is re-
qmred, that the representative shall, when elected, be
an mhabitant of the state, in which he shall be chosen.
The object of this clause, doubdess, was to secure an
attachment to, and a just representation o^ the inter-
ests of the state in the national councils. It was sup-
posed, that an inhabitant would feel a deeper concern,
and possess a more enlightened view of the various
interests of his constituents, than a mere stranger. And,
at all events, he would generally possess more entirely
their sympathy and confidence. It is observable, that
the inhabitancy required is within the state, and not
within any particular district of the state, in which the
member is chosen. In England, in former times, it
was required, that all the members of the house of
commons should be inhabitants of the places, for which
they were chosen. But this was for a long time wholly
disregarded in practice, and was at length repealed by
1 Journal of Uie ConTentioD,8 Aagust, 333; 234.
9 2 Wilion's Law Lectures, 14].
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CH. IX.] HOUSS OF RXPRSSSXTATITSS* 96
Statute of 14 Greo. 3^ cL 58.^ This circumstance is
not a little remarkable in parliamentary history ; and
it establishes, in a very striking manner, how little
mere theory can be regarded in matters of government
It was found by experience, that boroughs and cities
were often better represented by men of eminence,
and known patriotism, who were strangers to them,
than by those chosen from their own vicinage. And
to this very hour some of the proudest names in Eng-
lish history, as patriots and statesmen, have been the
representatives of obscure, and, if one may so say, of
ignoble boroughs.
^619. An attempt was made m the convention to
mtroduce a qualification of one year's residence before
the election ; but it failed, four states voting in favour
ofxit, six against it, and one bemg divided.* The
omission to provide, that a subsequent non-residence
shall be a vacation of the seat, may in some measure
defeat the policy of the original limitation. For it has
happened, in more than one instance, that a member,
after his election^ has removed to another state, and
thus ceased to have that intimate intercourse with, and
dependence upon his constituents^pon which so much
value has been placed in all M^scussions on this
subject.
^ 620. It is observable, that no qualification, in point
of estate, has been required on the part of members of
the house of representatives.' Yet such a qualifica-
tion is insisted on, by a considerable number of the
states, as a qualification for the popular branch of the
1 1 Black. Comm. 175 ; 2 Wilson's Law Lect. 142.
9 Journal of Convention, 8 August, p. 224, 225.
3 Journal of Convention, 26 July, p. 204, 205 ; Id. 212 ; Id. 241, 242.
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96 CONSTITUTION OF THE U. STATES^ [bOOX IIL
state legislature,^ The probability is, that it was not
incorporated into the constitution of the Unbn from
the difficulty of framing a provision, that would be gen-
erally acceptable. Two reasons have, however, been
assigned by a learned commentator for the omission,
which deserve notice. First, that in a representative
government the people have an undoubted right to
judge for themselves of the qualification of their repre-
sentative, and of their opinion if his integrity and abil-
ity will supply the want of estate, there is better reason
for contending, that it ought not prevail Secondly,
that by requiring a property qualification, it may hs^
pen, that men, the best qualified in other respects,
might be incapacitated firom serving their country.*
There is, doubtless, weight in each of these considera-
tions. The first, however, is equally applicable to all
sorts of qualifications whatsoever ; and proceeds upon
an inadmissible* foundation ; and that is, that the soci-
ety has no just right to regulate for the common good,
what a portion of the community may deem for their
special good. The other reason has a better founda-
tion in theory; though, generally speaking, it will
rarely occur in practice. But it goes very far towards
overturning another fundamental guard, which is
deemed essential to public liberty ; and that is, that
the representative should have a common interest in
measures with his constituents. Now, the power of
taxation, one of the most delicate and important in
human society, will rarely be exerted oppressively by
those, who are to share the common burthens. The
possession of property has in this respect a great value
1 Dr. Lieber's EDcyclopedia Amoncana, art. CcntUhdimu ^ ihjt
United States.
9 1 Tucker's Black. Comm. App. 212, 213 ; 1 Elliot's Debates, 55, 56.
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CH. IX.] HOUSS OF RXPREUKTATiyES. 97
among the proper qualifications of a representative ;
smce it will hare a tendency to check any undue im-
positions, or sacrifices, which may equally injure his
own, as well as theirs.^
^621. In like manner there is a total absence of
any qualification founded on religious opinions. How-
ever desirable it may be, that every government should
be administered by those, who have a fixed religious
belief and feel a deep responsibility to an infinitely
wise and eternal Bemg ; and however strong may be
our persuasion of the everlasting value of a belief in
Christianity for our present, as wdl as our immortal wel-
&re ; the history of the world has shown the extreme
dangers, as weU as difficulties^ of connecting the civil
power with religious opinions. Half the calamities, with
which the human race have been scourged, have aris-
en from the union of church and state ; and the { eople
of America^ above all others, have too largely partaken
of the terrors and the sufferings of persecution for
conscience' sake, not to feel an excessive repugnance
to the introduction of religious tests. Experience has
demonstrated the folly, as well as the injustice, of ex-
clusions from office, foimded upon religious opinions.
They have aggravated all other evils in the political
organization of societies. They carry in their train
discord, oppression, and bloodshed.* They perpetu-
ate a savage ferocity, and insensibility to human rights
and sufferings. Wherever they have been abolished,
they have introduced peace and moderation, and en-
li^tened legislation. Wherever they have been per-
petuated, they have always checked, and in many
1 1 Tucker's BlaeL Comm. App. 213, 3ia
> See 4 Black. Comm. 44, 45, 46, 47.
VOL. II. 13
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98 CONSTITUTIOIf OF THC U. STATC8. [bOOK HI.
cases have overturaed all the securities of public Kb*
erty. The right to burn heretics survived in England
almost to the close of the reign of Gharies the
Second ; * and it has been asserted, (but I have not
been able to ascertain the fact by examination of the
printed journals,) that on that occasion rhe whole
bench of bishops voted against the repeal. We all
know how slowly the Roman Catholics have recovered
their just rights in England and Ireland. The triumph
has been but just achieved, after ^ most painful contest
for a half century. In the catholic countries, to this
very hour, protestants are, for the most part, treated
with a cold and reluctant jealousy, tolerated perhaps,
but never cherished. In the actual situation of the
United States a union of the states would hare been
impractible from the known diversity of religious sects,
if any thing more, than a simple belief in Christianity in
the most general form of expression, had been required.
And even to this some of the states would have object-
ed, as inconsistent with the fundamental policy of their
own charters, constitutions, and laws. Whatever, .
indeed, may have been the desire of many persons, of
a deep religious feeling, to have embodied some provi-
sion on this subject in the constitution, it may be
safely affirmed, that hitherto the absence has not been
felt, as an evil ; and that while Christianity continues
to be the belief of the enlightened, and wise, and pure,
among the electors, it is impossible, that infidelity can
find an easy home in the house of representatives.
^ 622. It has been justly observed, that under the
reasonable qualifications established by the constituticm,
the door of this part of the federal government is open
1 4 Black. Comm. 49.
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CV. IX.] HOUSE OF REPRESElTTATiyES. 90
to merit of every description, whether native or adoptive,
whether young or old, and without regard to pov-
erty or wealth, or any particular professbn of re-
ligious faith.^
^ 623. A question, however, has been suggested
upon this subject, which ought not to be passed over
without notice. And that is, whether the states can
superadd any qualifications to those prescribed by the
constitution of the United States. The laws of some
of the states have already required, that the represen-
tative should be a fi'eeholder, and be resident within
the district, for which he is chosen.* If a state legiria-
ture has authority to pass laws to this effect, they may
impose any other qualifications beyond those provided
by the constitution, however inconvenient, restrictive,
or even mischievous they may be to the interests of
the Union. The legislature of one state may require,
that none but a Deist, a Catholic, a Protestant, a
Calvinist, or a Universalist, shall be a representative.
The legislature of anoth^ state may require, that none
shall be a representative but a planter, a farmer, a
mechanic, or a manufacturer. It may exclude mer-
chants, and divines, and physicians, and lawyers.
Another legislature may require a high monied qualifi-
cation, a freehdd of great value, or personal estate of
great amount Another legislature may require, that
the party shall have been bom, and fdways lived in
the state, or district ; or that he shall be an inhabitant
of a particular town or city, fi^e of a corporation, or
eldest son. In short, there is no end to the varieties
of qualifications, which, without insisting upon extrava-
gant cases, may be imagined. A state may, with the
1 The Federalist, No. 52.
> 1 Tucker's Black. Comm. App. 213.
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100 CONSTITUTION OF THE U. STATES. [BOOK III.
sole object of dissolving the Union, create qualifications
so high, and so singular, that it shall become impracti-
cable to elect any representative.
^ 624. It would seem but fair reasoning upon the
plainest principles of interpretation, diat when the con-
stitution estabUshed certain qualifications, as necessary
for office, it meant to exclude all others, as prerequi-
sites. Prom the very nature of such a provision, the
affirmation of these qualifications would seem to imply
a negative of all others. And a doubt of this sort
seems to have pervaded the mind of a learned com-
mentator.^ A power to add new qualifications is cer-
tainly equivalent to a power to vary them. It adds to
the aggregate, what changes the nature of the former
requisites. The house of representatives seems to have
Acted upon this interpretation, and to have held, that
the state legislatures have no power to prescribe new
qualifications, unknown to the ccmstitution of the United
States.^ A celebrated American statesman,' however,
with his avowed devotion to state power, has intimated
a contrary doctrine., **Ifi''says he, "whenever the
constitution assumes a single power out of many, which
belong to the same subject, we should consider it as
assuming the whole, it would vest the general govern-
ment with a mass of powers never contemplated. On
the contrary, the assumption of particular powers seems
an exclusion of all not assumed. This reasoning ap-
pears to me to be sound, but on so recent a change of
view, caution requires us not to be over confident.** *
He intimates, however, that unless the case be either
I 1 Tucker's Black. Comm. App. 213.
> 4 Jefferson's Corre^ndence, 338,
s Mr. Jefferson.
i Jefferson's Correspondence, 1239.
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CH. IX.] HOUra OF REPBESCNTATiyES. 101
clear or urgent, it would be better to let it lie undis-
turbed.*
^ 625. It does not seem to have occurred to this
celebrated statesman, that the whole of this reasoning,
which is avowedly founded upon that amendment to
the constitution, which provides, that ** the powers not
delegated nor prohibited to the states, are reserved to
the states respectively, or to the people,'* proceeds upon
a basis, which is inapplicable to the case. In the first
place, no powers could be reserved to the states, ex-
cept those, winch existed in the states before the con-
stitution was adopted. The amendment does not pro-
fess, and, indeed, did not intend to confer on the states
any new powers ; but merely to reserve to them, what
were not conceded to the government of the Union.
Now, it may properly be asked, where did the states
get the power to appoint representatives in the
national government? Was it a power, that existed
at all before the constitution was adopted ? If derived
from the constitution, must it not be derived exactly
under the qualifications established by the constitution,
and none others ? If the constitution has delegated no
power to the states to add new qualifications, how can
they cladm any such power by the mere adoption of
that instrument, which they did not before possess ?
^ 626. The truth is, that the states can exercise no
powers whatsoever, which exclusively spring out of the
existence of the national government, which the con-
stitution does not delegate to them* They have just
as much right, and no more, to prescribe new qudifi-
cations for a representative, as they have for a presi-
dent. Each is an officer of the Union, deriving his
1 4 Jefferson's Correfpondancei p. 239.
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102 CONST ITITTION OF THE U. STATES. [bOOK III*
powers and qualifications from the constitution, and
neither created by, dependent upon, nor controllable by,
the states. It is no original, prerogative of state power
to appoint a representative, a senator, or president for
the Union. Those oflScers owe their existence and
functions to the united voice of the whole, not of a por-
tion, of the people. Before a state can assert the rights
it must show, that the constitution has delegated and
recognised it. No state can say, that it has reserved,
what it never possessed.
^ 627. Besides ; mdependent of this, there is another
fundamental objection to the reasoning. The whole
scope of the argument is, to show, that the legislature
of the state has a right to prescribe new qualifications*
Now, if the state in its political capacity h^d it, it wodd
not follow, that the legislature possessed it That must
depend upon the powers confided to the state legisla-
ture by its own constitution. A state, and the legisla-
ture of a state, are quite different political beings. Now
it would be very desirable to know, in which part of
any state constitution this authority, exclusively of a
national character, is found delegated to any state legis-
lature. But this is not all. . The amendment does not
reserve the powers to the states exclusively, as political
bodies ; for the language of the amendment is, that the
powers not delegated, &c. are reserved to the states,
or to the people. To justify, then, the exercise of the
power by a state, it is indispensable to show, that it has
not been reserved to the pec^e of the state. The peo-
ple of the state, by adoptmg the constitution, have de-
clared what their will is, as to the qualifications ibr
ofiice. And here the maxim, if ever, must aj^ly, JSa?-
pressio wfiius est exchmo alterius. It might further be
urged, that the constitution, being the act of the whole
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CH. IX.] HOUSS or R£PR£S£irrATIVSS. 103
people of the United States, formed and fashioned ac-
cordmg to their own views, it is not to be assumed, as
the basis of any reasoning, that they hare given any
control over the functionaries created by it, to any
state, beyond what is found in the text of the instru-
ment When such a control is asserted, it b matter of
proof^ not of assumption ; it is matter to be established,
as of right, and not to be exercised by usurpation, un-
til it is displaced. The burthen of proof is on the state,
and not on the government of the Union. The aflirm-
ative is to be established ; the negative is not to be
denied, and the denial taken for a concession.
§ 628. In regard to the power of a state to prescribe
the qualification of mhabitancy or residence in a dis-
trict, as an additional qualification, there is this forcible
reason for denying it, that it is undertaking to act upon
the very qualification prescribed by the constitution, as
to inhabitancy in the state, and abridging its operation.
It is precisely the same exercise of power on the part of
the states, as if they should prescribe, that a represen-
tative should be forty years of age, and a citizen for ten
years. In each case, the very qualification fixed by
the constitution is completely evaded, and indirectly
abolished.
§ 629. The next clause of the second section of the
first article respects the apportionment of the represen-
tatives among the states. It is as follows : ^^ Represen-
**tatives and direct taxes shall be apportioned among
*^ the several states, which may be included in this
** Union, according to their respective numbers, which
" shall be determined by adding to the whole number of
"free persons, including those bound to service for a
" term of years, and excluding Indians not taxed, three-
" fifths of all other persons. The actual enumeration
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104 coNSTiTunoN or the u. states, [book iil
** shall be ma ^'^ within three years after the first meeting
**of the congress of the United States^ and within every
^ subsequent term of ten years, in such manner, as they
^ shall, by law, direct. The number of representatives
" shall not exceed one for every thirty thousand j but
"each state shall have at least one representative.
"And until such enumeration shall be made, the state
"of New-Hampshire shall be entitled to choose three,
"Massachusetts eight, Rhode-Island and Providence
" Plantations one, Connecticut five,New-Yorksix,New-
" Jersey four, Pennsylvania eight, Delaware one, Mary-
"land six, Virginia ten, North-Carolma five, South-
" Carolma five, and Greorgia three.'*
§ 630. The first apportionment thus made, being of
a temporary and fugacious character, requires no com-
mentary.* The basis assumed was probably very near-
ly the same, which the constitution pointed out for aM
future apporuonments, or, at least, of all the free persons
in the states.*
It is obvious, that the question, how the s^portion-
ment should be made, was one, upon which a consid-
erable diversity of judgment might, and probably would^
exist. Three leading principles of apportionment would,
at once, present themselves. One was to adopt the rule
already existing, under the confederation ; that is, an
equality of representation and vote by each state, thus
giving each state a right to send not kss than two, nor
more than seven representatives^ and in the determin-
ation of questions, each state to have one vote.' This
would naturally receive encouragement from all those,
who were attached to the confederation, and preferred
» Joarn. of Convention, lOth July, 165, 166, 167, 171, 172, 179, 216.
> Joum. of Conyention^ 159, note. But see The Federdist, No. 55*
s Confederation, Art 5.
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CH. IX.] HOUSJB or RXPRfiflXKTATITSS* 105
a mere league of states, to a government in any degree
national^ And accordingly it formed, as it should seem,
the basis of what was called the New-Jersey Plan.*
This rule of apportionment met, however, with a decid-
ed opposition, and was negatived m the conventitm at
an early period, seven states votmg against it, three be-
ing in its favour, and one being divided.'
^631. Another principle might be, to apportion the
representation of the states according to the relative
property of each, thus making property the basis
of representation. This might commend itsdf to some
persons, because it would introduce a salutary check
into the legislature m regard to taxation, by securing,
in some measure, an equalization of the public burthens,
by the voice of those, who were called to give most to-
wards the common contributions.^ That taxation ought
to go hand in hand with representation, had been a fa-
vourite theory of the American people. Under the con-
federation, all the common expenses were required to
be borne by the states in proportion to the value of
the land within each state.* But it has been already
seen, that this mode of contribution was extremely dif-
ficult and embarrassing, and unsatisfactory in practice,
under the confederatiop.^ There do not, indeed,
1 Journ. of Convention, 111, 153, 159.
9 Mr. Patterson's Plan, Journ. of Convention, 193; 4ElKot'8 Debates,
(Yates's Minutes,) 74 ; Id. 81 ; Id. 107 to 113, 116 ; 2 Pitk. Hist. 228,
239,232.
3 Journ. of Convention, llth June, 111. See also Id. 153, 154;
4 Elliot's Debates, (Yates's Minutes,) 68.
4 4 Elliot's Debates, (Yates's Minutes,) 68, 69 ; Jouin. of Convention,
llth June, 111 ; Id. 5th July, 158 ; Id. llth July, 169.
5 Confederation, Art. 8.
« Journals of Congress, 17th Feb. 1783, vol. 8, p. 129 to 133 ; Id. 27th
Sept. 1785, vol. 10, p. 328 ; Id. 18th April, 1783, vol. 8, p. 188 ; 1 Elliot's
Debates, 56; 2 Elliot's Debates, 113 ; 1 Tuck. Black. Comm. App. 235,
236, 243 to 246 ; The Federalist, No. 80; Id. No. 21.
VOL. II. 14
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106 CONSTITUTION OF THE V. STATES. [BOOK III.
seem to be any traces in the proceedings of the conven-
tion, that this scheme had an exclusive influence with
any persons m that body. It mixed itself up with other
considerations, without acquiring any decisive prepond-
erance. In the first place, it was easy to provide a reme-
dial check upon undue direct taxation, the only species,
of which there could be the slightest danger of unequal
and oppressive levies. And it will be seen, that this
was sufficiently provided for, by declaring, that repre-
sentatives and direct taxes should be apportioned by
the same ratio.
§ 632. In the next place, although property may not
be direcdy aimed at, as a basis in the representation,
provided for by the constitution, it cannot, on the other
hand, be deemed to be totally excluded, as will pres-
ently be seen. In the next place, it is npt admitted, that
property alone can, in a free government, safely be re-
lied on, as the sole basis of representation. It may be
true, and probably is, that in the ordinary course of
affairs, it is not the interest, or policy of those, who
possess property, to oppress those, who want it But, in
every well-ordered commonwealth, persons, as well as
property, should possess a just share of influence. The
liberties of the people are too dear, and too sacred to be
entrusted to any persons, who may not, at all tunes,
have a common sympathy and common interest with
the people in the preservation of theu* public rights^
privileges, and liberties. Checks and balances, if not
indispensable to, are at least a great conservative in, the
operations of all fi^e governments. And, perhaps, upon
mere abstract theory, it cannot be justly affirmed, that
either persons or property, numbers or wealth, can
safely be trusted, as the final repositaries of the dele-
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€H. IX.] R0U8JB OF RSPRXSlHTATiyXfl. 107
gated powers of goyemment^ By apportioning influ-
ence among each, vigilance^ caution^ and mutual checks
are naturally introduced, and perpetuated.
§ 633. The third and remaining principle was, to
apportion the representatives among the states accord-
ing to their relative numbers. This had the recom-
mendation of great simplicity and uniformity in its ope-
ration, of being generally acceptable to the people, and
of being less liable to fraud and evasion, than any other,
which could be devised.' Besides ; although wealth
and property cannot be affirmed to be in different
states, exacdy in proportion to the numbers ; they are
not so widely separated from it, as, at a hasty glance,
might be imagined. There is, if not a natural, at least a
very common connexion between them ; and, perhaps,
an apportionment of taxes according to numbers is as
equitable a rule for contributions according to reUtive
wealth, as any, which can be practically obtained.'
^ 634. The scheme, therefore, under all the circum-
stances, of making numbers the basis of the representa-
tion of the Union, seems to have obtained more gene-
ral favour, than any other in the convenrion, because it
had a natural and universal connexion with the rights
and liberties of the whole people.^
§ 636. But here a difficulty of a very serious nature
arose. There were other pers^ons in several of the
states, than those, who were free. There were some
persons, who were bound to service for a term of years;
though these were so few, that they would scarcely
1 The Federalirt, No. 54. « Id.
3 The Federalist, No. 54 ; Resolve of Congrese, 18th April, 1783,
(8 Joanials of Congress, 188,194,198); 1 United States Laws,(Bioren
& Duane^s edit) 29, 32, 35.
4 The Federalist, No. 54.
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108 CONSTITUTIOK OF THE U. STATES. [BOOK III.
vary the result of the general rule, in any important de-
gree. There were Indians, also, in several, and proba-
bly in most, of the states at that period, who were not
treated as citizens, and yet, who did not form a part of
independent communities or tribes, exercising general
sovereignty and powers of government within the boun-
daries of the states. It was necessary, therefore, to pro-
vide for these cases, though they were attended with no
practical difficulty. There seems not to have been any
objection in including, in the ratio of representation, per-
sons bound to service for a term of years, and in ex-
cluding Indians not taxed. The real (and it was a very
exciting) controversy was m regard to slaves, whether
they should be included in the enumeration, or not.^
On the one hand, it was contended, that slaves were
treated in the states, which tolerated slavery, as prop-
erty, and not as persons.' They were bought and sold,
devised and transferred, like any other property. They
had no civil rights, or poUtical privileges. They had
no will of their own ; but were bound to absolute obedi-
ence to their masters. There was, then, no more reason
for including them in the census of persons, than there
would be for including any brute animals whatsoever.'
If theywere to be represented as property, the rule
should beextended, soas to embrace all other property.
It would be a gross inequality to allow representation for
slaves to the southern states ; for that, in effect, would
be, to allow to their masters a predominant right, found-
ed on mere property. Thus, five thousand free per-
sons, in a slave-state, might possess the same power
1 2 Pitk. Hist 233 to 245.
» The Federalist, No. 54 ; 1 Elliot's Debates, 58 to 60 ; Id. 204, 212,
213 ; 4 Elliot's Debates, (MarUn's Address,) 24.
9 4 Elliot's Debates, (Yates's Minutes,) 69 ; Id; 24.
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CH* IX.] HOUSE OF BCPRESENTATiyES. 109
to choose a representative, as thirty thousand free per-
sons in a non-slave-hold'ing state.^
§ 636. On the other hand, it was contended, that
slaves are deemed persons, as well as property. They
partake of the qualities of both. In being compelled to
labour, not for himself, but for his master ; in being
vendible by one master to another ; and, in being
subject, at all times, to be restrained in his liberty, and
chastised in his body, by the will of another, the slave
may appear to be degraded from the human rank, and
classed with the irrational animals, which fall under the
denomination of property. But, in being protected in
his life and hubs against the violence of others, even
of the master of his labour and liberty ; and in being
punishable himself for all violence committed agamst
others ; the slave is no less evidently regarded by law,
as a member of the society, and not as a part of the
irrational creation ; as a moral person, and not as a
mere article of property.* The federal constitution
should, therefore, view them in the mixed character of
persons and property, which was in fact their true
character. It is true, that slaves are not included in
the estimate of representatives in any of the states pos-
sessmg them. They neither vote themselves, nor in-
crease the vote of their masters. But it is also true,
that the constitution itself does not proceed upon any
ratio of merely qualified voters, either as to represen-
tatives, or as to electors of them. If, therefore, those,
who are not voters, are to be excluded from the enu-
meration or census, a similar inequality ^ill exist in the
apportionment among the states. For the representa-
tives are to be chosen by those, who are qualified vot-
1 4 £mot*8 Debates, (Martin's Address,) 24 ; Id.(YatesVMinate8,) 69.
f The Federalist, No. 54 ; 1 Elliot's Debates, 312, 2ia
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1 10 CONSTltUTION OF THE U. STATES. [bOOK III.
ers, for the most numerous branch of the state legisla^
ture ; and the qualifications in different states are es-*
sentially different ; and, indeed, are in no two states
exactly alike. The constitution itself, therefore, lays
down a prmciple, which requires, that no regard shall
be had to the policy of particular states, towards their
own inhabitants. Why should not the same principle
apply to slaves, as to other persons, who were exclud-
ed as voters in the states? *
^ 637. Some part of this reasoning may not be very
satisfactory ; and especially the latter part of it. The
distinction between a free person, who is not a voter,
but who is, in no sense, property, and a slave, who is not
a voter, and who is, in every practical sense, property,
is, and for ever must form, a sound ground for discrim-
inating between them in every , constitution of gov-
ernment
^ 638. It was added, that the idea was not entirely
a just one, 4:hat representation relates to persons only,
and not to property. Government is instituted no less
for the protecUon of the property, than of the persons
of individuals. The one, as well as the other, may,
therefore, be considered as proper to be represented
by those, who are charged with the government And,
in point of fact, this view of the subject constituted the
basis of some of the representative departments in sev-
eral of the state governments.*
§ 639. There was another reason urged, why the
votes allowed in the federal legislature to the people
of each state ought to bear some proportion to the
comparative wealth of the states. It was, that states
1 The Federalist, No. 54; 1 Tuck. Black. Comm. App. 190, 191;
1 EUiot'B Debates, 213, 214.
9 The Federalist, No. 54 ; 1 Elliot's Debates, 2ia
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CH. IX.] H0IT8S OF RSPRESElfTATiyES. Ill
have not an influence over other states, arising from the
superior advantages of fortune, as individuals in the
same state possess over their needy fellow citizens
from the like cause* The richest state in the UnicHi
can hardly indulge the hope of influencing the choice
of a single representative in any other state ; nor will
the representatives of the largest and richest states
possess any other advantages in the national legblature,
than what results from superior numbers alone.^
^ 640. It is obvious, that these latter reasons have
no just application to the subject They are not only
over-strained, and founded In an mgenious attempt to
gloss over the real objections ; but they have this in-
herent vice, that, if well founded, they apply with equal
force to the representation of all property in all the
states ; and if not entitled to respect on this account,
they contain a most gross and indefensible inequality
in favour of a single species of property (slaves) ex-
isting in a few states only. It might have been con-
tended, with full as much propriety, that rice, or cot-
ton, or tobacco, or potatoes, should have been exclu-
sively taken into account in apportioning the repre-
sentation.
^ 641. The truth is, that the arrangement adopted
by the constitution was a matter of compromise and
concession, confessedly unequal in its operation, but a
necessary sacrifice to that spirit of conciliation, which
was indispensable to the union of states having a great
diversity of interests, and physical condition, and politi-
cal institutions.* It was agreed, that slaves should be
1 The Federalist, No. 54.
3 1 Elliot's Debates, 212, 313 ; 2 Pitk. Hist 233 to 244 ; Id. 245, 346,
247, 248 ; 1 Kent's Coram. 216, 217 ; The Federalist, No. 37, 54 ; 3 DalL
171, 177, 178.— It, at the present time, gives iwenhf:fiioe slave represen-
tatives in congress.
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112 CONSTITUTION OF THE V. STATES. [BOOK III.
represented, under the mild appellation of "other per-
sons," not as free persons, but only in the propor-
tion of three fifths. The clause was in substance bor-
rowed from the resolve, passed by the continental con-
gress on the 18th of April, 1783, recommendmg the
states to amend the articles of confederation m such
manner, that the national expenses should be defrayed
out of a common treasury, "which shall be supplied by
the several states, in proportion to the whole number
^ of white, or other free inhabitants, of every age, sex,
and condition, including those bound to servitude for a
term of years, and three fifths of all other persons, not
comprehended in the foregoing description, except In-
dians, not paying taxes, in each state." ^ In order to
reconcile the non-slave-holding states to this provision,
another clause was inserted, that direct taxes should
be apportioned in the same manner as representatives.
So, that, theoretically, representation and taxation might
go pari passu.' This provision, however, is more wspe-
cious than solid ; for while, in the levy of direct taxes,
it apportions them on three fifths of persons not free, it,
on the other hand, really exempts the other two fifths
from being taxed at all, as property.^ Whereas, if di-
rect taxes had been apportioned, as upon principle they
. ought to be, according to the real value of property
within the state, the whole of the slaves would have
been taxable, as property. But a far more striking in-
equality has been disclosed by the practical operations'
of the government. The principle of representation is
i Journals of Congress, 1783, vol. 8, p. 188; 1 Elliot's Debates, 5a
9 The Federalist, No. 54 ; Journal of Convention, 12lh July, J7I,
172; Id. 174, 175, 176, 179, 180, 210; Id. 235,- Id. 372; 1 ElHot's De-
bates, 56, 57, 58, 60; M. 213.
3 1 Tucker's Black. Comm. 190, 191 ; 1 Elliot's Debates, 58, 59.
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CH. IX.] HOUSE OF REPRfiSEHTATiySfl. 113
constant, and uniform ; the levy of direct taxes is occa*
sional, and rare. In the course of forty years, no more
than three direct taxes ^ have been levied; and those only
under very extraordinary and pressing circumstances.
The ordinary expenditures of Uie government are, and
always have been, derived from other sources. Im-
posts upon foreign importations have supplied, and wiU
generally supply, all the common veants ; and if these
should not furnish an adequate revenue, excises are
next resorted to, as the surest and most convenient
mode of taxation. Direct taxes constitute the last re-
sort ; and (as might have been foreseen) wovld never
be laid, until other resources had failed.
§ 642. Viewed in its proper light, as a real com-
promise, in a case of conflicting interests, for the com-
mon good, the provision is entitled to great praise for
its moderation, its aim at practical utility, and its ten-
dency to satisfy the people, that the Union, framed by
all, ought to be dear to all, by the privileges it confers,
as well as the blessings it secures. It had a material
influence in reconciling the southern states to other
provisions in the constitution, and especially to the
power of making commercial regulations by a mere
majority, which was thought peculiarly to fkvour the
northern states.^ It has sometimes been complained
of, as a grievance; but he, who wishes well to his
country, will adhere steadily to it, as a fundamental
policy, which extinguishes ^ome of the most mischiev-
ous sources of all political divisions, — those founded on
geographical positions, and domestic institutions. It
did not, however, pass the convention without objec-
1 In 1798, 1813, 1615. The last was partially repealed in 181&
9 1 ElUot's Debates, 212, 218.
VOL. II. 16
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114 COmTITUTIOH OF THX U. STATES. [BOOK in.
iioiL upon its first introduction, it was siq)ported bj
liie votes of nine states against two. In sid[>seqiient
stages of the discussicm, it met with some opposition ; ^
«nd m some of the state conventions it was sirenuoaslj
resisted' The wish of every patriot ought now to be,
requie^uxt 4n pace.
§ 643* Another part of the chuse regards the peri-
ods, at which the enumeration or census of the inhabi-
tmts of the United States shall be taken, in order to
provide for new s^portionments of representatives, ac-
txKrding to the relative increase of the population of the
states. Various propositions for this purpose were laid,
at different times, before the convention.' It was pro-
posed to have the census taken once in fifteen years, and
in twenty years ; But the vote finally prevailed in favour of
t^.^ The importance of this provision for a decennial
t^ensus ckn scarcely be overvalued. It is the only effect-
ual means, by which the relative power of the several
states could be justly represented. If the system first
established had been unalterable, very gross inequalities
would soon have taken place among the states, from the
very unequal increase of their population. The repre-
sentation would soon have exhibited a system very anal-
ogous to that of the house of commons in Great-Britam,
w'here old and decayed boroughs send representatives,
not only wholly disproportionate to their importance;
but in some cases, with scarcely a single inhabitant,
they match the representatives d* the most populous
counties.*
1 Joarnal of CoDveDtion, 11th June, 111, 113. See also Id. 11th
July, 168, 169,170,235,236; 4 £lliot's Debates, (Yates'b Minutes,) 69.
9 1 EUiot's Debates, 58, 59, 60, 204, 212, 213, 241.
3 Journal of Convention, 163, 164, 167, 168, 169, 172, 174, 180.
4 Journal of Convention, 12th July, 168, 170, 173, 180.
6 1 Black. Comm. 158, 173, 174; Bawle on Constit ch. 4, p. 44.
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CH. IX.] HOUSE or RCPRESUfTATITSS. 116
^ 644. In regard to the United States, the sMghtest
examination of the apportionment made under tke first
three censuses will demonstrate this conchiaion in a
Yerj strikmg manner. The representation of Deb*
ware remains, as it was at the first apportionment ; tbooe
oi New-Hampshire, Rhode-Island, Connecticut, New*
Jersey, and Maryland hare had hut a smaU comparatire
mcrease ; whilst that of Massachusetts (mcluding Mune)
has swdled fix)m eight to twraty ; that of New^Toark,
firom six to thirty-four ; and that of P^msyWania^ trcm
dght to twenty-Mx. In the mean time, the new states
have sprung into bemg ; and Ohio, which in 1803 was
only entided to one, now counts fourteen sqporesntar
tives.^ The census of 1831 exhibits still more str&kig
results. In 1790, the whole populaticm of the United
States was about three millions nine hundred and
twenty *nine thousand; and in 1830, it was about
twelve millions eight hundred and fifty-six thousand.^
Ohio, at this very moment, ccmtains at least one mil'*
li(m, and New-Tork two millions of mhabitants. These
&cts show the wisdom of the provision for a decemwl
apportionment ; and, indeed, it would otherwise bare
happened, that the system, however sound kt the be^^
ning, would by this time have been productive of gross
abuses, and probably have engendered feuds and dis*^
contents, of themselves sufficient to have occasioned a
dissdution of the Union. We probably owe this pro*
vision to those in the convention, who were in iiatvour of
a national government, in preference to a mere oonfed-
eration of states.'
1 Rawle on Constitution, ch. 4, p. 45.
3 American Almanac for 1882, p. 162.
9 See Journal of Convention, 165, 168, 109, 174, 179, 180.
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lis CONSTITUTIOll OF THE U. STATES. [BOOK III.
^ 646. The next part of the clause relates to the
total number of the house of representatives. It de^
dares, that ^the number of representatives shall not
exceed ohe for every thirty thousand.'' This was a
subject of great interest ; and it has been asserted, that
scarcely any ardcle of the whole constitution seems to
be rendered more worthy of attention by the weight of
character, and the apparent force of argument, with
which it was originally assailed.^ The number fixed
by the constitution to constitute the body, in the first
instance, and until a census was taken, was sixty-five.
i^ 646. Several objections were urged against the
provision. First, that so. small a number of represen-
tatives would be an unsafe depositary of the public in-
terests. Secondly, that they would not possess a
proper knowledge of the local circumstances of th^
numerous constituents. Thirdly, that they would be
taken fit>m that class of citizens, which would sympatiiize
least with the feelmgs of the people, and be most likely
to aim at a permanent elevation of the few, on the de-
pression of the many. Fourthly, that defective, as the
number in the first instance would be, it would be more
and more dbproportionate by the increase of the popu-
lation, and the obstacles, which would prevent a cor-
respondent increase of the representatives.'
^ 647. Time and experience have demonstrated the
Macy of some, and greatiy unpaired, if they have not
utterly destroyed, the force of all of these objections.
The fears, wluch were at that period so studiously
1 The FederaliBt, No. 55 ; 2 Amer. Moseum, 427 ; Id. 534 ; Id. 547 ;
4 Elliot's Debates, (Yates and LansiDg's Letter to Gov. Clinton,) 129,
laa
8 The Federalist, No. 58 ; 1 Ellioc's Debates, 56 ; Id. 206, 214, 215,
218, 219, 220, 221 to 225 ; Id. 226 to 232.
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CH. IX.] H01T9S OF REPKBSfiirTATiyXf . 117
cherished ; the alarms, which were so fcmiblj spread ;
the dangers to liberty, which were so strangely exag-
gerated; and the predominance of aristocratical and
exclusive power, which were so ccmfidendy predicted,
have all vanished into air, into thin air. Truth has
silently dissolved the phantoms raised by imaginadcms,
heated by prejudice or controversy ; and at the dis-
tance of forty years we look back with astonishment at
the laborious reasoning, which was employed to tran-
quillize the doubts, and assuage the jealousies of the
people. It is fit, however, even now, to bring this rea-
soning under review, because it inculcates upon us the
important lesson, how litde reliance can be placed upon
mere theory in any matters of government; and how
difficult it is to vindicate the most sound practical doc-
trines agamst the specious questioning of ingenuity and
hostility.
§ 648. The first objection was, to the smaOness of
the number composing the house of representatives.^
It was said, that it was unslde to deposit the legislative
powers of the Union vrith so small a body of men. It
was but the shadow of representation.' Under the
confederation, congress might consist of ninety-one ;
whereas, in the first instance, the house would consist
of but sixty-five. There was no certamty, that it
would ever be mcreased, as that would depend upon
the legislature itself in its fiiture ratio of apportionments;
and it was left completely in its discretion, not only to
1 It 18 remarkable, that the American writer, whom I have feveral
times cited, takes an opposite objectioD. He says, ^ the national house
of representatives will be at first too large ; and hereafter may be much
too large to deliberate and decide upon the best measores." Thoughts
upon the Political Situation of the United States of America, (Worces-
ter, 1788.)
a 2 Amer. Museum, 247, 534, 547, 551, 554.
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118 CONSTITUTIOll OF THE U. STATES. [bOOK III»
increase, but to dimmish the present nmnber.^ Under
such circumstances, there was, in fact, no ccmstitutional
security, for the whole depended upon the mere integ-
rity and patriotism of those, who should be called t6
admmister it'
^ 649. In reply to these suggestions it was said^ that
the present number would certainly be adequate, until
a census was taken. Although under the confedera-
tion ninety-one members might be chosen, in pomt of
hot a far less number attended' At the very first
census, supposing the lowest ratio of thirty thousand
were adopted, the number of representatiyes would be
increased to one hundred. At the expiraticm of twenty-
five years it would, upon the same ratio, amount to two
hundred ; and in fiffy years, to four hundred, a number,
which no one could doubt would be sufficiendy large
to allay all the fears of the most zealous admirers of a
fiill representation.^ In regard to the possible diminu-
tion of the number of representatives, it must be purely
an imagmary case. As etery state is entitled to at
least one r^resentative, the standard never would
probably be reduced below the population of the smallest
state. The population of Delaware, which increases
more slowly, than that of any other state, would, under
such circumstances, furnish die rule. And, if the other
states mcrease to a very large degree, it is idle to sup-
pose, that they will ever adopt a ratio, which will give the
smallest state a greater relative power and influence,
than themselves.^
1 1 fniiot'sDebates, 56, 57; Id. 204, 905, 4X)6; 2 Elliot's Debates, 53,
54; Id. 99.
fi 1 EDiot's Debates, 205; 2EUiot's Debates, 53, 54, 132, 206; Id.
293,224.
s 1 Elliot's Debates, 57, 249.
4 The Federalist, No. 55 ; 1 EUiot's Debates, 214, 215, 227.
s 1 Elliot's Debates, 242, 249.
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OB. IX.] H0U8S OF RmPRSSEHTATlTSS. 119
^ 660. But the question itself what is tbe proper
and conyement number to compose a r^)resentatiye
i^islatare, is as little susceptible of a precise sohitiont
as any, which can be stated in the whole circle of poli-
tics. There is no point, xxpoa which different nattons
are more at rariance ; and the policy of the American
states themselves, on this subject, while they were
agonies, and since they have become independent, has
been exceedingly discordant, bidependent of the dif-
ferences, ari^g from tbe population and size of the
states, there will be found to be great diversities among
diose, whose population and size neariy approadi each
other. In Massachu^tts, the house of representatives
is composed of a number between three and four hun-
dred; in Pennsylvania, of not more than one fifth of
that number; and in New-Yoilc, of not more than one
fifth. In Pennsylvania the rq>res^itatives do not bear
a greater proportion to their constituents, than one for
every four or five thousand. In Rhode-Island and
Massachusetts they besff a proportion of at least one fix*
every thousand. And according to the old constitution
df Georgia, the proportion may be carried to one for
evCTy ten electors.^
^ 651. Neither is diere any ground to assert, that
-die ratio between the representatives and the peoj^
ought, upon principle, to be the same, whether tte
latter be numerous or few. If the representatives fit»n
Virginia were to be chosen by the standard of Rhode*
Island, they would then amount to five hundred; and in
twenty or thirty years to one thousand. On tibe other
hand, the ratio of Pennsylvania applied to Delaware
would reduce the representative assembly to seven.
1 The Federalist, No. 55. See also the State Constitutions of that
period. 1 Elliot's Debates, 214» 319, 220, 925» 328, 252, 253.
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120 coirsTiTUTioir of the u. states, [book iu.
Nothing can be more fallacious, than to found political
calculations on arithmetical principles. Sixty or seven-
ty men maybe more properly trusted with a given
degree of power, than six or seven. But it does not
follow, that six or seven hundred would beproportiona-
bly a better depositary. And if the supposition is car-
ried on to six or seven thousand, the whole reasoning
ought to be reversed. The truth is, that, in all cases,
a certain number seems necessary to secure the bene-
fits of free consultation and discussion ; to guard against
too easy a combination for improper pmposes ; and to
prevent hasty and ill-advised legislation. On the other
hand the number ought to be Kept within a moder-
ate Ihnit, in order to avoid the confusion, mtemper-
ance, and inconvenience of a multitude.^ It was a
famous saying of Cardinal De Retz, that every public
assembly, consisting of more than one hundred mem-
bers, was a mere mob.' But surely this is just as incor-
rect, as it would be to aver, that every one, which con-
sisted of ten membei;^, would be wise.
§ 652. The question then is, and for ever must be, in
every nation, a mixed question of sound policy and dis-
cretion, with reference to its size, its population, its in-
stitutions, its local and physical condition, and all the
other circumstances affecting its own interests and con-
venience. As a present number, sixty-five was suflGi-
cient for all the exigencies of the United States ; and
it was wisest and safest to leave all future questions of
increase to be judged of by the future condition and
exigencies of the Union. What ground could there be to
suppose, that such a number chosen biennially, and re-
sponsible to their constituents, would voluntarily betray
I The Federalist, No. 55 ; 1 EUiot's Debates, 219, 220, 226, 227, 241,
242, 245, 246, 253 ; 2 Wilson's Law Lect 150 ; 1 Kent's Comm. 217.
9 2 Wilson's Law Lect. 150.
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CH. IX.] HO08E OF REPRS8EHTATITE8. 121
tbeir trusts, or refuse to follow the public will? The
verj state of the country forbade the supposition.
They would be watched with the jealousy and the
power of the state legislatures.^ They would have the
highest induc^nents to perform their duty. And to
suppose, that the possession of power for so short a
period could blind them to a sense of their own inter-
ests, or tempt them to destroy the public liberties, was
as impn)bable, as any thing, which could be within
the scope of the imagination.^ At all events, if they
were guilty of misconduct, their removal would be inev-
itable ; and their successors would be above all false and
corrupt conduct For to reason otherwise would be
oquivalent to a declaration of the universal corruption of
all mankind, and the utter impracticability of a republi-
can government The ccmgress, which conducted us
through the revolution, was a less numerous body, than
their successors will be.' They were not chosen by,
nor responsible to, the people at large ; ^ and though
appom ted from year to year^ and liable to be recalled
at pleastu^, they were generally continued for three
years. They held their consultations in secret They
transacted all our foreign affairs. They held the fate of
their country in their hands during the whole war. Yet
they never betrayed our rights, or our interests. Nay,
calumny itself never ventured to whisper any thing
agaimt their purity or patriotism.*
1 The Federalist, Na 55 ; 1 EUiot's Debates, 238, 239.
a The Federalist, No. 55 ; 1 Elliot's Debates, 252, 253, 254.
3 The Federalist. No. 55 ; 1 Elliot's Debates, 206, 223, 249-
4 Geaerally they were choeen by the state legislatures ; but in two
states, viz. Rhode-Island and Connecticut, they were chosen by the
people.*
s The Federalist, No. 55 ; 1 ElUot's Debates, 254.
•TheF6daPAlKN6.40.
VOL. u. 16
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122 CONSTITUTION OF THE U. STATES. [bOOK III.
^ 652. The suggestion is often made, that a numer-
ous representation is necessary to obtsdn the confidence
of the people.^ This is not generally true. Public con-
fidence will be easily gained by a good administration ;
and it will be secured by no other.* The remark, made
upon another occasion by a great man, is correct in
regard to representatives — non numerantury ponderan"
tur. Delaware has just as much confidence in her
representation of twenty -one, as New- York has in hers
of sixty-five ; and Massachusetts has in hers of more
than three hundred.^
^ 663. Nothing can be more unfair and impolitic, than
to substitute for argument an indiscriminate and un-
bounded jealousy, with which all reasoning must be
vain. The sincere fi'iends of liberty, who give them-
selves up to the extravagancies of this passion, inflict
the most serious injury upon their own cause. As
there is a degree of depravity in mankind, which re-
quires a certain degree of circumspection and dis-
trust ; so there are other qualities in human nature,
which justify a certain portion of esteem and confidence.
A republican government presupposes, and requires the
existence of these qualities in a higher degree, than any
other form; and wholly to destroy our reliance on
them is to sap all the foundation, on which our liberties
must rest.*
^ 664. The next objection was, that the house of
representatives would be too small to possess a due
knowledge of the interests of their constituents. It was
said, that the great extent of the United States, the
1 1 Elliotts Debates, 206, 217. » Id. 227, 228.
3 1 EUiot's Debates, 227, 228, 241, 252, 253, 254 ; 2 EUiot's Debates,
107, 116.
4 The Federalist, No. 55 ; 1 Elliot's Debates, 238, ^239.
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CH. IX.] HOUSE OF REPRESENTATIVES. 123
variety of its interests, and occupations, and institutions
would require a very numerous body in order to bring
home information necessary and proper for wise legi^-
tion.*
^ 655. In answer to this objection, it was admitted,
that the representative ought to be acquainted with the
interests and circumstances of his constituents. But
this principle can extend no farther, than to those inter-
ests and circumstances, to which the authority and care
of the representative relate. Ignorance of very minute
objects, which do not lie within the compass of legisla-
tion, is consistent with every attribute necessary to the
performance of the legislative trust* If the argument,
indeed, required the most minute knowledge, applicable
even to all the professed objects of legislation, it would
overturn itself ; for the thing would be utteriy imprac-
ticable. No representative, either in the state or na-
tional councils, ever could know, or even pretend to
know, all arts, and sciences, and trades, and subjects,
upon which legislation may operate. One of the great
duties of a representative is, to inquire into, and to obtain
the necessary information to enable him to act wisely
and correcdy in particular cases. And this is attained
by bringing to the mvestigation of such c^es talents,
industry, experience, and a spirit of comprehensive
bquiry. No one will pretend, that he, who is to make
laws, ought not to be well instructed in their nature,
interpretation, and practical results. But what would
be said, if, upon such a theory, it was to be seriously
urged, that none, but practical lawyers, ought ever to be
eligible as legislators ? The truth is, that we must rest
1 1 EUiot'8 Debates, 219 220, 228, 232, 233, 241.
9 The Federalist, No. 55; 1 Elliot's Debates, 226, 229; 1 Kent's
Comm. 217.
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124 COirSTITUTION OF THS U. 8TATS8. [bOOK in.
satisfied with general attainments ; and it is visionary
to suppose, that any one man can represent all the skill,
and interests, and business, and occupations of all his
constituents in a perfect manner, whether they be few or
many. The most, that can be done, is, to take a com-
prehensive survey of the general outlines ; and to search^
as occasion may require, for that more intimate 'miot*
matidn, which belongs to particular subjects requiring
immediate legislation.
^ 656. It is by no means true, that a large rq)resen-
tation is necessary to understand the interests ol the
people. It is not either theoretically, or practically true,
that a knowledge of those interests is augmented in
proportion to the increase of representatives.^ The
interests of the state of New- York are probably as well
understood by its sixty^-five representatives, as those of
Massachusetts by its three or four hundred. In &ct,
higher qualifications will usually be sought and required,
where the representatives are few, than where they
are many. And there will also be a higher ambition to
serve, where the smallness of the number creates a
desirable distinction, than where it is shared with many,
and of course individual importance is essentially dimin-
ished.
§ 657. Besides ; in considering this subject, it is to
be recollected, that the powers of the general govern-
ment are limited ; and embrace only such objects, as
are of a national character. Local information of pecu-
liar local interests is, consequently, of less value aikl
importance, than it would be in a state legislature, where
the powers are general.* The knowledge required of a
national representative is, therefore, necessarily of a
1 lEttiot'BDeb)itet,d99.
9 The Federalist, No. 5a*
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CH. IX.] HOUSE OF RSPRSSENTATirES. 125
more large and comprehensive character, than that of
a mere state representative. Minute information, and a
thorough knowledge of local interests, personal opinions,
and private feelings, are far more important to the latter
than the formen' Nay, the v^ devotion to local
views, and feelings, and interests, which naturally tends
to a narrow and selfish policy, may be a just disquali-
fication and r^roach to a member of congress.' A liber-
al and enlightened policy, a knowledge of natbnal rights,
duties, and interests, a familiarity with foreign gov-
ernments, and diplomatic history, and a wide survey of
the operations of commerce, agriculture, and manufac-
tures, seem indispensable to a lofty discharge oi his
functions.' A knowledge of the peculiar interests, and
products, and institutions of the different states of the
Union, is doubtless of great value ; but it is rather as
it conduces to the performance of the higher functions
already spoken o^ than as it sympathizes with the load
interests and feelings of a particular district, that it is to
be estimated.^ And in regard to those local facts, which
are chiefly of use to a member of congress, they are
precisely those, which are most easily attainable from
the documentary evidence in the departments of the
national government, or which lie open to an intelBgent
man in any part of the state, which he may represent^
A knowledge of commerce, and taxaticm, atnl manufac-
tures, can be obtained with more certainty by inquiries
conducted through many, than dirough a sin^ cfaannd
of commumcaticm. The representatives of each state
1 ] Elliot's Debates, 228, 229, 253; 2 Lloyd's Debates, (in 1789,) 189 ;
The Federalist, No. 56.
s 1 Elliot's Debates, 238.
3 1 Elliot's Debates, 228, 229, 253 ; The Federalist, No. 56.
4 The Federalist, No, 56; 1 Elliot's Debates, 220, 241, 242, 246^ 258.
5 The Federalist, No. 56 ; 1 ElUot's Debates, 228, 229, 25a
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126 CONSTITUTION OF THE U. STATES. [bOOK III.
will generally bring* with them a considerable knowledge
of its laws, and of the local interests of their districts.
They will often have previously served as members in
the state legislatures ; and thus have become, in some
measure, acquainted with all the local views and wants
of the whole state.^
^ 668. The functions, too, of a representative in
congress require very different qualifications and attain-
ments, from those required in a state legislature. In-
formation relative to local objects is easily obtained in a
single state ; for there is no difference in its laws, and
its interests are but litde diversified. . But the legisla-
tion of congress reaches over all the states ; and as the
laws and local circumstances of all differ, the informa-
tion, which is requisite for safe legislation, is far more
difiicult and various, and directs the attention abroad,
rather than at home.* Few members, comparatively,
speaking, will be found ignorant of the local mterests of
their district or state ; but time, and diligence, and a
rare union of sagacity and public spirit, are indispensa-
ble to avoid egregious mistakes in national measures.
^ 669.* The experience of Great Britain upon this
subject furnishes a very instructive commentary. Of
the five hundred and fifty-eight members of the house
of commons one ninth are elected by three hundred
and sixty-four persons ; and one half by five thousand
seven hundred and twenty-three persons.' And this
half certainly have litde or no claim to be deemed the
guardians of the interests of the people, and indeed are
1 The Federalist, No. 56. » Id. No. 56 ; Id. No. 35.
3 See Mr. Christian's note, (34,) to 1 Black. Comro. 174, where he
states the number, of which the house of commons has consisted at differ-
ent periods, from which it appears, that it has been nearly doubled since
the beginning of the reign of Henry the Eighth. See also 4' Inst 1.
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CH. IX.] HOUSE OF REPRESENTATIVES. 127
notoriously elected by other interests.* Taking the
population of the whole kingdom the other half will not
average more than one representative for about twen-
ty-nine thousand of the inhabitants.' It may be added,
diat nothing is more common, than to select men for
representatives of large and populous cities and dis-
tricts, who do not reside therein ; and cannot be pre-
sumed to be indmately acquainted with their local inter-
ests and feelings. The choice, however, is made from
high motives, a regard to talents, public services, and
political sagacity. And whatever may be the defects
of the representative system of Great Britain, very
few of the defects of its legislation have been imputed
to the ignorance of the house of commons of the true
interests or circumstances of the people.'
^ 660. In the history of the constitution it is a curi-
ous fact, that with some statesmen, possessing high
political distinction, it was made a fundamental objec-
tion against the establishment of any national legislature^
that if it **were composed of so numerous a body of men,
as to represent the mterests of all the inhabitants of the
United States in the usual and true ideas of representa-
tion, the expense of supportmg it would be intolera-
bly burthensome ; and that if a few only were vested
with a power of legislation, the mterests of a great ma-
jority of the inhabitants of the United States must be
necessarily unknown ; or, if known, even in the first
stages of the operations of the new government, unat-
tended to." * In their view a free government seems to
» The Federalist, No. 56 ; Paley's Moral Philosophy, B. 6, ch. 7.
a The Federalist, No. 56, 57.
3 The Federalist, No. 56. See alsot Dr. Franklin's Reraariw, 2 Pit-
kin's Hist 242 ; 1 Wilson's Law Lect 431, 432; Paley's Moral Philoso-
phy, B. 6, ch. 7 ; 1 Kent's Comm. 219*
4 Letter of Messrs. Yates and Lansing to Gov. Clinton, 1786, (3 Aomr .
Museum, 156, 158.)
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128 CONSTITUTION OF THE U, STATES* [BOOK III*
have been incompatible with a great extent of territory,
or population. What, then, would become of Great
Britain, or of France, under the present constitution of
their legislative departments ?
§ 661. The next objection was, that the representa^
tives would be chosen from that class of citizens, which
would have the least sympathy with the mass of the
people ; and would be most lUcely to aim at an ambi-
tious sacrifice of the many to the aggrandizement of
the few.^ It was said, that the author of nature had
bestowed on some men greater capacities, than on
others. Birth, education, talents, and wealth, created
distinctions among men, as visible, and of as much in-
fluence, as stars, garters, and ribbons. In every society
men of this class will command a superior degree of
respect ; and if the government is so constituted, as to
admit but few to exercise ks powers, it will, according
to the natural course of things, be m then* hands. Men
in the middlmg class, who are qualified as representa-
tives, will not be so anxious to be chosen, as those of
the first ; and if they are, they will not have the means
of so much influence.'
§ 662. It was answered, that the objection itself is
of a very extraordinary character ; for while it is lev-
elled against a pretended oligarchy, m principle it strikes
at the very root of a republican government; for it
si4)poses the people to be incapable of making a proper
clK)ice of representatives, or indifferent to it, or utteriy
corrupt m the exercise of !the right of suffrage. It
would not be contended, that the first class of society,
the men of talents, experience, and wealth, ought to be
1 The Federalist, No. 57; 1 EUiot's Debates, 220, 221. See also
The Federalist, No. 35.
9 1 £Iliot'8 Debates^ 221, 222.
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CH. IX.] HOrSE OF R£PB£8ElrrATiy£8. 129
I constitutionally excluded from office. Such an attempt
would not only be unjust, but suicidal ; for it would
nourish an influence and faction withm the state, which,
upon the very supposition, would continually exert its
whole means to destroy the government, and overthrow
the liberties of the people.* What, then, is to be done ?
If the people are free to make the choice, they will
naturally make it from that class, whatever it may be,
which will in their opmion best promote their inter-
ests, and preserve their liberties.* Nor are the poor,
any more than the rich, beyond temptation, or love of
power. Who are to be the electors of the representa-
tives? Not the rich, more than the poor; not the
learned, more than the ignorant ; not the heirs of dis-
tinguished families, more than the children of obscurity
and unpropitious fortune.' The electors are to be the
body of the people of the United States, jealous of their
rights, and accustomed to the exercise of their powen
Who are to be the objects of their choice? Every
citizen, whose merit may commend him to the esteem
and confidence of his fellow citizens. No qualification
of wealth, or birth, or religion, or civil profession, is
recognised in the constitution ; and consequentiy, the
people are free to choose from any rank of society ac-
cording to their pleasure.*
§ 663. The persons, who shall be elected represen-
tatives, must have all the mducement to fidelity, vigi-
lance, and a devotion to the mterests of the people,
which can possibly exist Tliey must be presumed to
be selected from their known virtues, and estimable
I 1 1 Elliot's Debates, 222, 223.
) « The Pederalbt, No. 35 ; Id. No. 26 ; Id. No. 57.
3 The Federalist, No. 57 ; Id. No. 35 ; Id. No. 36.
« The Federalist, No. 57 ; Id. No. 35 ; Id. No. 36.
VOL. II. 17
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130 CONgTirUTION OF THS V. STATES. [BOOK UU
qualities, as well as from their talents. They must have
a desire to retain, and exalt their reputation, and be
ambitious to deserve the continuance of that public
favour, by which they have been elevated. There is in
every breast a sensibility to marks of honour, of favour,
of esteem, and of confidence, which, apart from all
considerations of interest, is some pledge for grateful
and benevolent returns.^ But the interest of the rep-
resentative, which naturally bmds him to his constitu-
ents, will be strengthened by motives of a selfish char-
acter. His election is biennial; and he must soon
return to the common rank of a citizen, unless he is
re-elected. Does he desire oflSce? Then that very
desire will secure his fidelity. Does he feel the value
of public distinctions 1 Then his pride and vanity will
equally attach him to a government, which affords him*
an opportunity to share in its honours and distinctions,
and to the people, who alone can confer them.* Be-
sides ; he can make no law, which will not weigh as
heavily on himself and his fiiends, as on others ; and
he can introduce no oppression, which must not be
borne by himself, when he sinks back to the common
level As for usurpation, or a perpetuation of his
authority, independent of the popular will, that is hope-
less, until the period shall have arrived, in which the
people are ready to barter their liberties, and are ready
to become the voluntary slaves of any despot.' When-
ever that period shall arrive, it will be useless to speak
of guardians, or of rights. Where all are corrupt, it
is idle to talk of virtue. Q^is custodiet custodes ?
1 The Federalist, No. 57.
9 The Federalist, No. 57.
3 The Federalist, No. 57 ; Id. No. 35, 36.
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CB. IX.] HO\78S or REPRESSlCTATiyfiS. 131
Who shall keep watch over the people, when they
choose to betray themselves 1
^ 664. The objection itself is, in truth, utterly desti-
tute of any solid foundation. It applies with the same
force to the state legislatures, as to that of the Union.
It attributes to talents, and wealth, and ambition an
mfluence, which may be exerted at all times, and every-
where. It speaks in no doubtful language, that repub-
lican government is but a shadow, and incapable of
preserving life, liberty, or property * It supposes, that
the people are always blind to their true interests, and
always ready to betray them ; that they can safely
trust neither themselves, nor others. If such a doc-
trine be maintainable, all the constitutions of America
are founded in egregious errors and delusions.
^ 666. The only perceptible diflference between the
case of a representative in congress, and in the state
legislature, as to this point, is, that the one may be
elected by five or six hundred citizens, and the other
by as many thousands.^ Even this is true only in par-
ticular states ; for the representatives in Massachusetts
(who are all chosen by the towns) may be elected by
six thousand citizens ; nay, by any larger number, ac-
cording to the population of the town. But giving the
objection its full force, could this circumstance make
any solid objection? Are not the senators in several
of the states chosen by as large a number? Have they
been found more corrupt, than the representatives ? Is
the objection supported by reason ? Can it be said,
that five ot six Aousand citizens are more easily cor-
rupted, than five or six hundred? • That the aggregate
I The Pederaliat, No. 57 ; Id. No. 35, 36.
* The Federalist, No. 57. 3 The Federalist, No. S7.
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132 CONSTITUTIOir OF THE U. STATES. [BOOK III.
mass will be more mider the influence of intrigue, than
a portion of it ? Is the consequence, deducible from the
objection, admissible ? If it is, then we must deprive
the people of all choice of their public servants in all
cases, where numbers are not required.* What, then,
is to be done in those states, where the governors are
by the state constitution to be chosen by the people 1
Is the objection warranted by facts ? The represen-
tation in the British house of commons (as has been
already stated) very little exceeds the proportion of
one for every thirty thousand inhabitants.* Is it true,
that the house of commons have elevated themselves
upon the ruin of the many ? Is it true, that the repre-
sentatives of boroughs have been more faithful, or wise,
or honest, or patriotic, than those of cities and of coun-
ties 1 Let us come to our own country. The districts
in New-Hampshire, in which the senators are chosen
immediately by the people, are neariy as large, as will
be necessary for her representatives in congress. Those
in Massachusetts come from districts having a larger
population ; and those in New-York from districts still
larger. In New- York and Albany the members of
assembly are elected by nearly as many voters, as will
be required for a member of congress, calculating on
the number of sixty-five only. In some of the coun-
ties of Pennsylvania the state representatives are elect-
ed in districts nearly as large, as those required for the
federal representatives. In the city of Philadelphia
(composed of sixty thousand inhabitants) every elector
has a right to vote for each of the representatives in
the state legislature ; and actually elects a single mem-
ber to the executive council.* These are facts, which
1 The Federalist, No. 57. « Id. No. 56, 57. 8 Id. No. 57.
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CH. IX.] HOirSE OF REPRjCSENTATITES. 133
demonstrate the fallacy of the objection ; for no one
will pretend, that the rights and liberties of these states
are not as well maintained, and as well understood by
their senators and representatives, as those of any other
states ' in the Union by theu^. There is yet one
stronger case, that of Connecticut ; for there one branch
of the legislature is so constituted, that each member of
it is elected by the whole state.^
§ 666. The remaining objection was, that there was
no security, that the niunber of members would be
augmented from time to time, as the progress of the
population might demand.*
§ 667. It is obvious, that this objection is exclu-
sively founded upon the supposition, that the people
will be too corrupt, or too indiflferent, to select proper
representatives; or, that the representatives, when
chosen, will totally disregard the true mterests of their
constituents, or wilfully betray them. Either supposi-
tion (if the preceding remarks are well founded) is
equaUy madmissible. There are, however, some addi-
tional considerations, which are entitled to great weight.
In the first place, it is observable, that the federal consti-
tution will not suffer in comparison with the state consti-
tutions in regard to die security,^ which is provided for a
gradual augmentation of the number of representatives.
In many of them the subject has been left to the dis-
cretion of the legislature ; and experience has thus far
demonstrated not only, that the power is safely lodged,
but that a gradual increase of representatives (where
it could take place) has kept pace with that of the con-
stituents.* In the next place, as a new census is to
1 The Federalist, No. 57.
9 The Federalist, No. 58 ; 1 Elliot's Debates, 204, 234.
8 The Federalist, No. 58.
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134 CONSTITUTIOlf OF THE U* STATES* [BOOK III.
take place within every successive ten years, for the
avowed purpose of readjusting the representation from
time to time, according to the national exigencies, it is
no more to be imagined, that congress will abandon
its proper duty in this respect, than in respect to
any other power confided to it. Every power may be
abused ; every duty may be corruptly deserted. But,
as the power to correct the evil will recur at least bien-
nially to the people, it is impossible, that there can long
exist any public abuse or dereliction of duty, unless
the people connive at, and encourage the violation.*
In the next place, there is a peculiarity in the federal
constitution, which must favour a constitutional augmen-
tation of the representatives. One branch of the na-
tional legislature is elected by the people ; the other,
by the states. In the former, consequently, the large
states will have more weight ; in the latter, the smaller
states will have the advantage. From this circum-
stance, it may be fairly inferred, that the larger states,
and especially those of a growing population, will be
strenuous advocates for mcreasmg the number and
weight of that part of the legislature, in which their in-
fluence predominates.*
^ 668. It may be said, that there will be an antag-
onist influence in the senate to prevent an augmenta-
tion. But, upon a close view, this objection will be
foimd to lose most of its weight In the first place, the
house of representatives, being a co-ordinate branch,
and directly emanating from the people, and speaking
the known and declared sense of the majority of the
people, will, upon every question of this nature, have
i 1 Elliot's Debates, 239.
9 The Federalist, No. 58 ; 2 Lloyd's Debates, in 1789, p. 192.
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CH. IX.] HOUS£ OF REPRESENTATIVES. 136
no small advantage, as to the means of influence and
resistance. In the next place, the contest will not be
to be decided merely by the votes of great states and
small states, opposed to each other, but by states of in-
termediate sizes, approaching the two extremes by
gradual advances. They will naturally arrange them-
selves on the one side, or the other, according to cir-
cumstances ; and cannot be calculated upon, as identi-
fied permanently with either. Besides; in the new
states, and those, whose population is advancing, wheth-
er they, are great or small, there will be a constant
tendency to favour augmentations of the representa-
tives ; and, indeed, the large states may compel it by
making re-apportionments and augmentations mutual
conditions of each other.^ In the third place, the house
of representatives will possess an exclusive power of
proposing supplies for the s»upport of government ; or, m
other w^ords, it will hold the purse-strings of the nation.
This must for ever give it a powerful influence in the
operations of the government ; and enable it effectu-
ally to redress every serious grievance.* The house
of representatives will, at all times, have as deep an
interest in maintaining the interests of the people, as
the senate can have in maintaining that of the states.'
^ 669. Such is a brief view of the objections urged
against this part of the constitution, and of the answers
given to them. Time, as has been already intimated,
has already settled them by its own irresistible demon-
strations. But it is impossible to withhold our tribute of
admiration from those enlightened statesmen, whose
1 The Federalist, No. 58.
s The Federalist, No. 57 ; 1 EUiot's Debates, 236, 227.
3 The Federalist, No. 58;
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136 CONSTITUTIOlf OP THE U. STATES. [bOOK III.
profound reasoning, and mature wisdom, enabled the
people to see the true path of safety. What was then
prophecy and argument has now become fact At
each successive census, the number of representatives
has been gradually augmented.^ In 1792, the ratio
adopted was 33.000, which gave an aggregate of one
hundred and six representatives.- In 1802, the same
ratid was adopted, which gave an aggregate of one
hundred and forty-one members. In 1811, the ratio
adopted was ^5.000, which gave an aggregate of one
hundred and eighty-one members. In 1822, the ratio
adopted was 40.000, which gave an aggregate of two
hundred and ten members. In 1832, the ratio adopted
was 47.700, which gave an aggregate of two hundred
and forty members.*
^ 670. In the mean time, the house of representa-
tives has silently acquired vast influence and power
over public opinion by its immediate connexion and
sympathy with the people. No complaint has been
urged, or could now with truth be urged, that it did not
understand, or did not represent, the interests of the
people, or bring to the public councils a competent
knowledge of, and devotion to, the local interests and
feelings of its constituents. Nay ; so little is, and so
little has the force of this objection been felt, that
several states have voluntarily preferred to elect their
representatives by a general ticket, rather than by dis-
tricts. And the electors for president and vice-president
are more frequently chosen in that, than in any other
manner. The representatives are not, and never have
I Act of 1792, ch. 23; Act of 1802, ch. 1 ; Act of 1811, cb. 9 ; Act
of 1822, ch. 10 ; 1 Tuck. Black. Comm. App. 190 ; Rawle onCk>D8ti-
tutioD, 45.
» Act of 22d May, 1832, ch. 91.
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CH. IX.] HOUSE OF REPRESENTATITES. 137
been, chosen exclusively from any high, or privileged
class of society. At this moment, and at all previous
times, the house has been composed of men fix)m
almost every rank and class of society ; planters, farmers,
manufacturers, mechanics, lawyers, physicians, and di-
vines ; the rich, and the poor ; the educated, and the
uneducated men of genius ; the young, and the (Ad ;
the eloquent, and the taciturn ; the statesman of a half
century, and the aspirant, just released from his aca-
demical studies. Merit of every sort has thus been
able to assert its claims, and occasionally to obtain its
just rewards. And if any complaint could justly be
made, it would be, that the choice had sometimes been
directed by a spirit of intolerance, that forgot every
thing but its own creed ; or by a spirit of party, that re-
membered every thmg but its own duty. Such infirmities,
however, are inseparable from the condition of human
nature ; and their occurrence proves nothing more, than
that the moral, like the physical world is occasionally
visited by a whirlwind, or deluged by a storm.
§ 671. It remains only to take notice of two qual-
ifications of the general principle of representation,
which are engrafted on the clause. One is, that each
state shall have at least one representative ; the other
is that already quoted, that the number of representa-
tives shall not exceed one for every 30.000. The for-
mer was indispensable in order to secure to each state
a just representation in each branch of the legislature ;
which, as the powers of each branch were not exactly
co-extensive, and especially, as the power of originat-
bg taxation was exclusively vested in the house of
representatives, was indispensable to preserve the
equality of the small states, and to reconcile them to
a surrender of their sovereignty. This proviso was
VOL. n. 18
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138 CONSTITUTION OF THE U. STATES. [bOOK III.
omitted m the first draft of the constitution, though
proposed in one of the preceding resolutions.? But it
was adopted without resistance, when the draft pass-
ed under the solemn discussion of the convention.*
The other was a matter of more controversy. The
original limitation proposed was 40.000;* and it was
not until the very last day of die session of the con-
vention, that the number was reduced to 30.000.* The
object of fixing some limitation was to prevent the
future existence of a very numerous and unwieldy
house of representatives. The friends of a national
government had no fears, that the body would ever
become too small for real, effective, protecting service.
The danger was, that from the natural impulses of the
popular will, and the desire of ambitious candidates to
attain office, the number would be soon swollen to an
unreasonable size, so that it would at once generate, and
combine factions, obstruct deliberations, and introduce
and perpetuate turbulent and rash counsels.*
§ 672. On this subject, let the Federalist speak in
its own fearless and expressive language. "In all
legislative assemblies the greater the number compos-
ing them may be, the fewer will the men be, who will,
m fact, direct their proceedmgs.^ In the first place,
the more numerous any assembly may be, of whatever
characters composed, the greater is known to be the
1 Joarn. of ConveDtioii, 157, 158, 309, 215.
3 Joum. of Conveotion, 8th Aug. p. 296.
3 Joum. of Convention, 157, 217, 235, 352.
< Journ. of Convention, 17th Sept 1787, p. 389.
5 1 Lloyd's Debates in 1789, 427, 434 ; 2 Lloyd's Debates, 183, 185,
186, 188, 189, 190.
8 The same thought is expressed with still more force in the Ameri-
can pamphlet, entitled, Thoughts upon the Political situation of America.
{Worcester, 1788,) 54.
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CH. IX.] uovn OF R£pmx8fiirTATiys8. 139
ascendancy of passion over reason. In the next place,
the larger the number, the greater will be the propor-
tion of members of limited information and weak
capacities* Now, it is precisely on characters of this
description, that the eloquence and address of the few
are known to act with all their force. In the ancient
republics, where the whole body of the people assem-
bled in person, a single orator, or an ardul statesman^
was generally seen to rule with as complete a sway, as
if a sceptre had been placed in hb single hand. On
the same principle, the more multitudinous a represen-
tative assembly may be rendered, the more it will par-
take of the in&mities incident to coUective meetings <^
the people. Ignorance will be the dupe of cunning ;
and passion the slave of sophistry and declamation.
The people can never err more than in supposing, that
in multiplying their representatives beyond a certain
limit, they strengthen the barrier against the govern-
ment of a few. Experience will for ever admonish
them, that, on the contrary, after securing a sufficient
number for the purposes of safety, of local information,
and of diffiisive sympathy, they will counteract their
own views by every addition to their representatives.
The countenance of the government may become
more democratic ; but the soul, that animates it, will
be more oligarchic. The machine will be enlarged,
but the fewer, and often the more secret, will be the
springs, by which its motions are directed.^ *
1 The Federalist, No. 58. — Mr. Ames, in a debate in congress, in
1789, on amending the constitution in regard to representation, obsery-
ed, " By enlarging the representation, we lessen the chance of selecting
men of the greatest wisdom and abilities ; because small districts may
be conducted by intrigue ; but in large districts nothing but real dignity
of character can secure an election." * Unfortunately, the experience of
* 9 Lloyd'i Debates, 183.
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140 CONSTITUTION OF THE U. 8TATBS. [boOE III;
§ 673. As a fit conclusion of this part of die sub-
ject it may be remarked, that congress, at its first
session in 1789, in pursuance of a desire expressed by
several of the state conventions, in favour of further
declaratory and restrictive amendments to the consti-
tution, proposed twelve additional articles. The first
was on the very subject now under consideration, and
was expressed in the following terms : ** After the first
enumeration required by the first article of the con-
stitution, there shall be one representative for every
thirty thousand, until the number shall amount to one
hundred ; after which the proportion shall be so regu-
lated by congress, that there shall not be less than one
hundred representatives, nor less than one for every
forty thousand persons, until the number of represen-
tatives shall amoimt to two hundred ; after which, the
proportion shall be so regulated by congress, that there
shall not be less than two hundred representatives, nor
more than one representative for every fifty thous-
and.** * This amendment was never ratified by a com-
petent number of the states to be incorporated into the
constitution.^ It was probably thought, that the whde
subject was safe, where it was already lodged ; and
that congress ought to be left fi*ee to exercise a sound
discretion, according to the fiiture exigencies of the
nation, either to increase, or diminish the number of
representatives.
§ 674. There yet remain two practical questions of
no inconsiderable importance, connected with the
the United States has not justified the belief, that larfife districts will
always choose men of the greatest wisdom, abilities, and real dignity.
1 Journ. of Convention, &c Suppt 466 to 481.
9 The debates in congress on this amendment will be found in
2 Lloyd's Debates, 182 to 194 ; Id. 250.
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CH. IX.] H0U8S OF RXPRSBSirTATiyXS« 141
clause of the constitution now under consideration.
One is, what are to be deemed direct taxes within the
meaning of the clause. The other is, in what manner
the apportionment of representatives is to be made.
The first will naturally come under review in examin-
ing the powers of congress, and the constitutional lim-
itations upon those powers ; and may, therefore, for the
present, be passed over. The other was a subject of
much discussion at the time, when the first apportion-
ment was before congress after the first census was
taken ; and has been recently revived with new and
increased interest and ability. It deserves, therefore,
a very deliberate examination.
^ 675. The language of the constitution is, that
<^ representatives and du*ect taxes shall be apportioned
^^ among the several states, &c. according to ijieir
^^ respective numbers ; '^ and at the first view it would
not seem to involve the slightest difficulty. A
moment's reflection will dissipate the illusion, and
teach us, that there is a difficulty intrinsic in the very
nature of the subject. In regard to direct taxes, the
natural course would be to assume a particular sum to
be raised, as three millions of dollars ; and to appor-
tion it among the states according to their relative
numbers. But even here, there virill always be a very
small firactional amount incapable of exact distribution,
since the numbers in each state will never exactiy
coincide with any common divisor, or give an exact
aliquot part for each state without any remainder.
But, as the amount may be carried through along
series of descending money fractions, it may be ulti-
mately reduced to the smidlest fiaction of any existing,
or even imaginary coin.
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148 COHSTITUTIOK OJP TH£ U. 8TAT£8. [bOOK UI.
^ 676. But the difficulty is far otherwise in regard
to representatives. Here, there can be no subdivision of
the unit ; each state must be entided to an entire repre-
sentative, and a fraction of a representative is mcapable
of i^portionment Yet it will be perceived at once,
that it is scarcely possible, and certainly is wholly im-
probable, that the relative numbers in each state should
bear such an exact proportion to the aggregate, that
there should exist a common divisor for all, which
should leave no fraction in any state. Such a case
never yet. has existed ; and in all human probability it
never will Every common divisw, hitherto applied,
has left a fraction greater, or smaller, in every state ;^
and what has been in the past must continue to be for
the fiitiu'e. Assume the whole population to be three,
or six, or nine, or twelve millions, or any other num-
ber; if you follow the injunctions of the constitution,
and attempt to apportion the representatives accordmg
to the numbers in each state, it will be found to be
absolutdy impossible. The theory, however true,
becomes practically false in its application. Each state
may have assigned a relative proportion oi representa-
tives up to a given number, the whole being divisible
by some common divisor ; but the fraction oi popula-
tion belonging to each beyond that point is left unpro-
vided for. So that the apportionment is, at best, only
an approximation to the rule laid down by the consti-
tution, and not a strict compliance with the rule. The
fraction in one state may be ten times as great, as
that m another ; and so may differ m each state in
any assignable mathematical proportion. What then is
to be done? Is the constitution to be wholly disre-
1 See 5 Marshall's Life of Washington, ch. 5, p. 319.
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CH. IX.] HOUSE or R£PR£S£KTATiy£S. 1 43
garded on this point? Or is it to be followed out in
its true spirit, though unavoidably differing from the
letter, by the nearest approximation to it? If an addi-
tional representative can be assigned to one state
beyond its relative proportion to the whole population,
it is equally true, that it can be assigned to all, that are
in a similar predicament If a fraction admits of rep-
resentation in any case, what prohibits the application
of the rule to all fractions ? The only constitutional
limitation seems to be, that no state shall have more
than one representative for every thirty thousand per-
sons. Subject to this, the truest rule seems to be,
that the apportionment ought to be the nearest practi-
cal approximation to the terms of the constitution ; and
the rule ought to be such, that it shall always work the
same way in regard to all the states, and be as little
open to cavfl, or controversy, or abuse, as possible.
^ 677. But it may be asked, what are the first steps
to be taken in order to arrive at a constitutional appor-
tionment ? Plainly, by taking the aggregate of popu-
lation in all the states, (according to the constitutional
rule,) and then ascertain the relative proportion of the
population of each state to the population of the whole.
This is necessarily so in regard to direct taxes ; ^ and
1 ^ By the cons^utioD,^ says Mr. Chief Justice Marshftll in deliTeriHg
the opinion of the court, '* direct taxation, in its iq)plication to states,
shall be apportioned to numbers. Representation is not made the foun-
dation of taxation. If, under the enumeration of a representative for
every 30,000 souls, one state had been found to contain 59,000 and
another 60,000, the first would have been entitled to only one repre-
sentative, and the last to two. Their taxes, however, would not have
been as one to two, but as fifty-nine to sixty." * This is perfectly cor-
rect, because the constitution prohibits more than one representative fbr
every 90,000. But if one state contain 100,000 souls, and« another
« Imghbonmgk ▼. Blak$, 5 Whe^n'i R. 317, 390.
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144 ' CONSTITUTION OF THE U. STATES. [BOOK III.
there is no reascm to say, that it can, or ought to be
otherwise in regard to representatives ; for that would
be to contravene the very injunctions of the constitu-
tion, which require the like rule of apportionment
in each case. In the one, the apportionment may be
run down below unity ; in the odier, it cannot. But
this does not change the nature of the rule, but only
the extent of its application.
§ 678. In 1790, a bill was introduced mto the house
of representatives, giving one representative for every
thirty thousand, and leaving the fractions unrepresented ;
thus producing an mequality, which was greatly com-
plained oil It passed the house ; and was amended
in the senate by allowing an addi^onal representative
to the states having the largest fractions. The house
finally concurred in the amendment, after a warm de-
bate. The history of these proceedings is summarily
stated by the biographer of Washington, as follows : —
" Construing,'* says he, ** the constitution to authorize
a process, by which the whole number rf representa-
tives should be ascertained on the whole population of
the United States, and afterwards apportioned among
the several states according to their respective num-
bers, the senate applied the number thirty thousand, as
a divisor, to the total population, and tsJdng the quo-
tient, which was one hundred and twenty, as the num-
ber of representatives given by the ratio, which had
been adopted m the house, where the bill originated,
they apportioned that number among the several
states by that ratio, until as many representatives, as it
dOO,000, there is no lo^^c, which, consistently with common sense, or
Justice, pould, upon any constitutional apportionment, assign three rep<-
resentatives to one, and seven to the other, any more than it could of a
direct tax the proportion of tkree to one, and seven to the other.
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CH« IX.] H0U8S OF REPRX8S1ITATITS8. 146
would give, were allotted to each. The residuary
members were then distributed among the states
having the highest fractions. Without professing the
principle, on which this apportionment was made, the
amendment of the senate n^erely allotted to the states
respectively the number of members, which the process
just mentioned would gi?e.^ The result was a more
equitable apportionment of representatives to popula-
tion, and a still more exact accordance, than was found
in the original bill, with the prevailing sentiment, which,
both within doors and without, seemed to require, that
the popular branch of the legislature should consist of
as many members, as the fundamental laws of the gov-
ernment would admit. If the rule of construing that
mstrument was correct, the amendment removed ob-
jections, which were certainly well founded, and was
not easily assailable by the advocates of a numerous
representative body. But the rule was novel, and
overturned opinions, which had been generally assum-
ed, and were supposed to be settled. In one branch
of the legislature, it had been already rejected ; and
in the other, the majority m its favour was only one.^^ •
^ 679. The debate in the two houses, however, was
purely political, and the division of the votes purely
geographical ; the southern states voting against it,
and the northern in its favour.' The president returned
the bill with two objections. " 1. That the constitu-
1 The words of the hill were, " That from and after the the third day
of March, J 793, the house of representatives shall be composed of one
hundred and twenty-seven members, elected within the seveiml suites
according to the following apportionment, that is to say, within tho state
of New -Hampshire, five, within the state of Massachusetts, sixteen,"
&c. &c. enumerating all the states.
s 5 Marshall's Life of Washington, eh. 5, p. 391, 322.
3 4 Jefferson's Correspondence, 466.
TOL. II. 19
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146 CON8TIT17TION OF THE V. StATSS. [BOOK 111.
tion has prescribed, that representatives shall be appor-
tioned among the several states according to their re-
spective numbers ; and there is no proportion or divisor,
which, applied to the respective numbers of the states,
will yield the number and allotment of representatives
proposed by the bill, 2. The constitution has also pro-
vided, that the number of representatives shall not ex-
ceed one for thirty thousand, which restriction is by
the context, and by fair and obvious construction, to be
applied to the several and respective numbers of the
states, and the bill has allotted to eight of the states
more than one for thirty thousand/' ^ The bill was
accordingly lost, two thirds of the house not being m
its favoiu*. It is understood, that the president's cabi-
net was greatly divided on the question.*
§ 680. The second reason assigned by the presi-
dent against the bill was well founded in feet, and
entirely conclusive. The other, to say the least of it,
is as open to question, as any one, which cem well be
imagined in a case of real difficulty of construction* It
assumes, as its basis, that a common ratio, or divisor,
is to be taken, and applied to each state, let the frac-
tions and mequalities left be whatever they may.
Now, this is a plain departure from the terms of the
constitution. It is not there said, that any such ratio
shall be taken. The language is, that the representa-
tives shall be apportioned among the several states ac-
cording to their respective numbers, that is, according
to the proportion of the whole population of each state
to the aggregate of all the states. To apportion ac-
cording to a ratio, short of the whole number in a state,
is not an apportionment according to the respective
I 5 Marshall's Life of Washington, ch. 5, p. 324, note.
3 Id. p. a2d ; 4 Jefferson's Correspondence, 466.
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CH* IX.] H01T8£ OF RfiPRESEKTATIYfift. 147
numbers of the state« If h is said, that it is impractica-
ble to follow the meaning of the terms literally, that ma^
be admitted ; but it does not follow, that they are to be
wholly disregarded, or language substituted essential-
ly different in its import and effect. If we must depart,
we must depart as litde as practicable. We are to act
on the doctrine of cypreSy or come as nearly as possible
to the rule of the constitution. If we are at liberty to
adopt a rule varying from the terms of the constitution,
arguing ab inconvenieniij then it is clearly just as open
to others to reason on the other side from opposmg in-
convenience and injustice.
^681. This question, which a learned commentator
has supposed to be now finally at rest,^ has been (as has
been already intimated) recently revived and discussed
with great ability. Instead of pursuing my own reason-
mg upon this subject it will be far more satisfactory to
give to the reader, in a note, the arguments on each
side, as they are found collected in the leading reports
and documents now forming a portion of contemporary
history.'
1 Rawle on Constitution, 43; 5 Marshairs Life of Washington, 324.
8 Mr. Jefferson's opinion, given on the apportionment bill in 1792,
presents all the leading reasons against the doctrine of apportioning the
representatives in any other manner than by a ratio without regard to
fractions. It is as follows :
" The constitution has declared that * representatives and direct taxes
shall be apportioned among the several states according to their respec-
tive numbers ; * that * the number of representatives shall not exceed
one for every 30,000, but each state shall have, at least, one represenU-
tive ; and, until such enumeration shall be made, the state of New-
Hampshire shall be entitled to choose three, Massachusetts,* &c.
" The bill for apportioning representatives among the several states,
without explaining any principle at all, which may show its conformity
with the constitution, or guide future apportionments, says, that New-
Hampshire shall have three members, Massachusetts sixteen, &lc. We
are, therefore, to find by experiment what has been the principle of the
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148 CONSTITUTION OF THE V. STATES. [bOOK III,
§ 682. The next clause of the second section of the
first article, is : " When vacancies happen in the repre-
" sentation of any state, the executive authority thereof
" shall issue writs of election to fill such vacancies.**
§ 683. The propriety of adopting this clause does
not seem to have furnished any matter of discussion,
either in, or out of the convention.* It was obvious,
that the power ought to reside somewhere ; and must
be exercised, either by the state or national government,
or by some department thereof. The fi-iends of state
powers would naturally rest satisfied with leaving it
with the state executive ; and the friends of the national
bill ; to do which, it is proper to state the federal or representable num-
bers of each state, and the members allotted to them by the bilL They
are as follows :
Vermont,
New-Hampshire,
Massachusetts,
Rhode-Island,
Connecticut,
New-York,
New-Jersey,
Pennsylvania,
Delaware,
Maryland,
Virginia,
Kentucky,
North Carolina,
South Carolina,
Georgia,
85,532
3
141,833
5
475,387
16
68,444
2
235,941
8
352,915
11
179,55<>
6
432,880
14
55,538
2
278,513
9
630,558
21
68,705
2
a53,521
11
206,236
7
70,843
2
3,636,312
120
It happens that this representa-
tion, whether tried as between
great and small states, or as
between north and south, yields,
in the present instance, a tol-
erably just result, and conse-
quently could not be objected
to on that ground, if it were ob-
tained by Uie process prescrib-
ed in the constitution ; but, if
obtained by any process out of
that, it becomes inadmissible.
" The first member of the clause of the constitution above cited, is
express — that representatives shall be apportioned among the several
states according to their respective numbers ; that is to say, they shall be
apportioned by some common ratio, for proportion and ratio are equiva-
lent words ; and it is the definition of proportion among numbers, that
they have a ratio common to aU, or, in other words, a common divisor.
Now, trial will show that there is no common ratio, or divisor, which, ap-
plied to the numbers of each state, will give to them the number of re-
1 Journal of Convention, 217, 237, 352.
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CH. IX.] HOUSE or REPRCSENTATITSS.
149
goremment would acquiesce in that arrangement, if
other constitutional provisions existed sufficient to pre-
serve its due execution. The provision, as it stands
has the strong recommendation of public convenience,
and facile adaptation to the particular local circum-
presentatives allotted in this bill ; for, trying the several ratios of 29, 30^
31, 32, 33, the allotments would be as follows :
Vermont,
New-Hampshire,
Massachusetts,
Rhode-Island,
Connecticut,
New-York,
New-Jersey,
Pennsylvania,
Delaware,
Maryland,
Virgihia,
Kentucky,
North Carolina,
South Carolina,
Georgia,
29
30
31
32
33
The
bUl.
2
2
2 2 1
2
3
4
4
4
4
4
5
16
15
15
14
14
16
2
2
2
2
2
2
8
7
7
7
7
8
12
11
11
11
10
11
6
5
5
5
5
6
14
14
13
13
13
14
1
1
1
1
1
2
9
9
8
8
8
9
21
21
20
19
19
21
2
2
2
2
2
2
12
11
11
11
10
12
7
6
6
6
6
7
2
2
2
2
2
2
118
112
109
Il07
105
120
Then the bill re-
verses the consti-
tutional precept ;
because, by it, * re-
presentatives are
not apportioned
among the several
states according
to their respective
numbers.'
'< It will be taid, that, though for Utxes there may always be found a
divisor, which will apportion them among the states according to num-
bers exactly, without leaving any remainder ; yet, for reprtsadatwtt^
there can be no such common ratio, or divisor, which, applied to the
several numbers, will divide them exactly, without a remainder or fimc-
tion. I answer, then, that iaxts roust be divided exactly, and representn'
Hves as nearly as the nearest ratio will admit, and the fractions must be
neglected; because the constitution wills, absolutely, that there be an
apportionment, or common ratio ; and if any fractions result fron»tke op-
eration, it has left them unprovided for. In fact, it could not but fore-
see that such fractions would result, and it meant to submit to them. It
knew they would be in favour of one part of the Union at one time, and
of another part of it at another, so as, in the end, to balance occasional
inequalities. But, instead of such a single common ratio, or uniform
divisor, as prescribed by the constitution, the bill has applied two ratios,
at least, to the different states, to wit, that of 30,026 to the seven follow-
ing : Rhode-Island, New-York, Pennsylvania, Maryland, Virginia, Ken-
tacky, and Georgia ; and that of 27,770 to the eight others ; namely,
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160 CONSTITUTION OF THE U. STATES. , [BOOK III.
Stances of each state. Any genersJ regulation would
have worked with some inequality.
^ 684. The next clause is, that " the house of re-
**presentati?es shall choose their speaker, and other
Vermont, N6w-Hampshire, Massachusetts, Connecticut, New-Jersey,
Delaware, North Carolina, and South Carolina. As follows :
?
lAnd
!?
Rhode Island, -
68,444
u
2
Vermont,
85,532
tMD
3
New York,
352,915
^
11
New-Hampshire,
141,8 3
?:
5
Pennsylvania,
432,880
S
14
Massachusetts, -
475,337
u
16
Maryland,
•278,513
^
9
1 Connecticut,
235,941
Si
8
Virginia, - -
630,558
>»
21] New-Jerscy,
179,5 6
>»
6
Kentucky,
68,705
2
Delaware,
55,538
2
Georgia,
70,843
0)
2
North Carolina, -
353,521
-g
12
>
South Carolina, -
206,236
>
'/
Q_
IqI I
" And if two ratios may he applied, then^een may, and the distribu-
tion become arbitrary, instead of being apportioned to numbers.
« Another member of the clause of the constitution, which has been
cited, says, < the number of representatives shall not exceed one for
every 30,000, but each state shall have, at least, one representative.'
This last phrase proves that it had in contemplation, that all fractions, or
numbers hdow thecommon ratioy were to be unrepresented ; and it pro-
vides specially, that, in the case of a state whose whole number shall be
below Uie common ratio, one representative shall be given to it This is
the single instance where it allows representation to any smaller num-
ber than the common ratio, and, by providing specially for it in this,
shows it was understood, that, without special provision, the smaller
number would, in this case, be involved in the general principle.
<< The first phrase of the above citation, that * the number of repre-
sentatives shall not exceed one for every 30/X)0,' is violated by this bill,
which has given to, eight states a number exceeding one for every
30,000, to wit, one for every 27,770.
<< In answer to this, it is said, that this phrase may mean either the
thirty tkpusands in each stote, or the thirty thousands in the uihole VnUm;
and that, in the latter case, it serves only to pnd the amount of the whole
representation, which, in the present state of population, is one hundred
and twenty members. Suppose the phrase might bear both meanings,
which will common sense apply to it? Which did the universal under-
standing of our country apply to it ? Which did the senate and repre-
sentatives apply to it during the pendency of the first bill, and even till
an advanced stage of this second bill, when an ingenious gentleman
found out the doctrine of fractions — a doctrine so difficult and inobvioos,
as to be rejected, at first sight, by the very persons who afterwards be-
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CH. IX.]
H0IT8S OF REPRXSSNTAT1TS8.
161
^officers, and shall have the sole power of impeach-
^ment''
§ 685. Each of these privileges b of great practical
ralue and importance. In Great Britain the house of
came its most zealous advocates ? The phrase stands in the midst of a
number of others, every one of which relates to states in their separate
capacity. Will not plain common sense, then, understand it, like the
rest of its context, to relate to states in their separate capacities ?
** But if the phrase of one for 30,000, is only meant to give the aggre-
gate of representatives, and not at all to influence their apportionment
among the states, then the one hundred and twenty being once found, in
order to apportion them, we must recur to the former rule, which doee
it according to ike numbers of the respective states ; and we must take the
nearest common divisor as the ratio of distribution, that is to say, that
divisor, which, applied to every state, gives to them such numbers asy
added together, come nearest to 120. This nearest common ratio will
be found to be 28,858, and will distribute 119 of the 120 members, leav-
ing only a single residuary one. It will be found, too, to place 96,648
fractional numbers in the eight northernmost states, and 105,582, in the
southernmost The following table shows it :
Ratio of
Fnetiont.
Vermont,
85,532
98,858.
2
27,816
New-Hampshire
141,823
4
26,391
Massachusetts
475,327
16
13,509
Rhode-Island
68,444
2
10,728
Connecticut
235.941
8
5,077
New-York
a52,915
12
6,619
New -Jersey
179,556
6
6,408
Pennsylvania
432,880
15
10
96,648
Delaware
55,538
1
26,680
Maryland
278,513
9
18,791
Virginia
630,558
21
24,540
Kentucky
68,705
o
10,989
•
North Carolina
353,521
12
7,225
South Carolina
206>236
7
4,230
Georgia
70,843
2
13,127
105,582
3,636,312
119
202,230
202,230
" Whatever may have been the intention, the effect of rejecting the
nearest divisor, (which leaves but one residuary member,) and ado))ting
a distant one, (which leaves eight,) is merely to take a member from
New- York and Pennsylvania each, and give them to Vermont and New-
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162 CONSTITUTIOK OF THE U. STATES. [BOOK III.
commons elect their own speaker ; but he must be ap-
proved by the kirg.^ This approval is now altogether
a matter of course; but anciently, it seems, the king
intimated his wish previously, in order to avoid the
necessity of a refusal ; and it was acceded to.* The
very language used by the speakers in former times, in
order to procure the approval of the crown, was such
as would not now be tolerated ; and indicated, at least,
Hampshire. But it will be said, * this is giving more than one for 30,000.'
True ; but has it not been jost said, that the one for 30,000 is prescribed
only to fix the aggregate number, and that we are not to mind it when
we come to apportion them among the states ; that for this we must re-
cur to the former rule, which distributes them according to the numbers
in each state ? Besides, does not the bill itself, apportion among seven
of the states by the ratio of 27,770, which is much more than one for
30,000?
^ Where a phrase is susceptible of two meaningfs, we ought certainly
to adopt that which will bring upon us the fewest inconveniences. Let
us weigh those resulting from both constructions.
** From that givicg to each state a member for every 30,000 in that
state, results the single inconvenience, that there may be large fractions
unrepresented. But it being a mere hazard on which states this will fall,
hazard will equalize it in the long run.
** From the other, results exactly the same inconvenience. A thousand
cases may be imagined to prove it Take one ; suppose eight of the
states had 45,000 inhabitants each, and the other seven 44,999 each, that
is to say, each one less than each of the others, the aggregate would
be 674,993, and the number of representatives, at one for :X),000 of the
aggregate, would be 22. Then, after giving one member to each state,
distribute the seven residuary members among the seven highest frac-
tions ; and, though the difference of population be only an unit, the
representation would be the double. Here a single inhabitant the more
would count as 30,000. Nor is this case imaginable only ; it will resem-
ble the real one, whenever the fractions happen to be pretty equal
through the whole states. The numbers of our census happen, by acci-
dent, to give the fractions all very small or very great, so as to produce
the strongest case of inequality that could possibly have occurred, and
which may never occur again. The probability is, that the fractions
will generally descend gradually from 39,999 to I. The inconvenience,
then, of large unrepresented fractions attends both constructions ; and,
I 1 Black. Comm. 181.
8 Com. Dig. Parliament, E. 5 ; 4 Inst 8, Lex. Pari. ch. 12, p. 74.
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CH. IX.] HOUSE OF REPRESENTATIVES.
163
a disposition to undue subserviency.* A similar power
of approval existed in the royal governors in many
of the colonies before the revolution. The exclusive
while the most obvious construction is liable to no other, that of the bill
incurs many and grievous ones.
1st -
45,000
2
FncxkmB,
15,000
2d - . . -
45,000
2
15,000 ,
2d - ...
45,000
2
15,000
4th -
45,000
2
15,000
5th -
45,000
2
15,000
6th .
45,000
2
15,000
7th .
45,00(»
2
15,000
8th -
45,000
2
15,000
9th - . -
44,999
14,999
10th -
44,999
14,999
11th -
44,999
14,999
12th .
44,999
14,999
13th -
44,999
14,999
14th .
15th -
uS
14,999
14,999
674,993
** 1. If you permit the large fraction in one state to choose a repre-
sentative for one of the small fractions in another state, you take from
the latter its election, which constitutes real representation, and substi-
tute a virtual representation of the disfranchised fractions; and the ten-
dency of the doctrine of virtual representation has been too well discuss-
ed and appreciated by reasoning and resistance, on a former great occa-
sion, to need developement now.
^ 2. The bill does not say, that it has given the residuary representa-
tives io the greatest Jhidxons ; though, in fact, it has done so. It seems
to have avoided establishing that into a rule, lest it might not suit on
another occasion. Perhaps it may be found the next time more conve-
nient to distribute them among the smaller states ; at another time among
Ike larger states ; at other tiroes according to any other crotchet, which
ingenuitynnay invent, and the combination of the day give strength to
carry ; or they may do it arbitrarily, by open bargain and cabal. In
short, this construction introduces into congress a scramble, or a vendue
for the surplus members. It generates waste of time, hot blood, and
may, at some time, when the passions are high, extend a disagreement
between the two houses, to the perpetual loss of the thing, as happens
1 See Christian's Note to 1 Black. Comm. 181 ; Com. Dig. Pariiameni,
£. 5. ; 1 Wilson's Law I^ect 159, 160; 4 Co. Inst. 8.
VOL. II. 20
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164 CONSTlTUTIOir OF THE U. STATES. [BOOK III.
right of choosing a speaker, without any appeal to, or
approval by any other department of the government,
is an improvement upon the British system. It secures
BOW in Pennsylyania assembly : whereas the other construction reduces
the apportionment always to an arithmetical operation, about which no
two men can possibly differ.
^ 3. It leaves in full force the violation of the precept which declares,
that representatives shall be apportioned among the states according to
their numbers, that is, by some common ratio.
'* Viewing this bill either as a vioUUion of the corutttuHony or as giv-
ing an ineonvtnierU exposUxon to its ioorda^ is it a case wherein the presi-
dent ought to interpose his negative ? I think it is.
^ 1. The non-user of his negative begins already to excite a belief,
that no president will ever venture to use it ; and, consequently, has
begotten a desire to raise up barriers in the state legislatures against
congress throwing off the control of the constitution.
** 2. It cann ever be used more pleasingly to the public, than in the pro*
taction of the constitution.
^ 3. No invasions of the constitution are so fundamentally dangerous,
as the tricks played on their own numbers, apportionment, and other cir-
cumstances respecting themselves, and affecting their legal qualifications
to legislate for the Union.
^ 4. The migorities,by which this bill has been carried, (to wit, of one
in the senate, and two in the house of representatives,) show how divided
tha opinions were there.
** 5. The whole of both houses admit the constitution will bear the other
escposition ; whereas the minorities in both deny it will bear that of the
bilL
^ 6. The application of any one ratio is intelligible to the people, and
will, therefore, be approved ; whereas the complex operations of this bill
will never be comprehended by them ; and, though they may acquiesce,
they cannot approve, what they do not understand."
Mr. Webster's report on the same subject, in the senate in April«
1632, presents the leading arguments on the other side.
*^ This bill, like all laws on the same subject, must be regarded, as of
an interesting and delicate nature. It respects the distribution of politi-
cal power among the states of the Union. It is to determine the num-
ber of voices, which, for ten years to come, each state is to possess in the
popular branch of the legislature. In the opinion of the committee,
there can be few or no questions, which it is more desirable should be
settled on just, fair, and satisfactory principles, than this ; and, availing
themselves of the benefit of the discussion, which the bill has already
undergone in the senate, they have given to it a renewed and anxious
consideration. The result is, that, in their opinion, the bill ought to be
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CH. IX.] HOUSE or REPRESENTATIVES. 155
a more independent and unlimited choice on the part
of the house, according to the merits of the individual,
and their own sense of duty. It avoids those incon-
amended. Seeing^ the difficulties, which belong to the wholo subject,
they are fully convinced, that the bill has been framed and passed in the
other house, with the sincerost desire to overcome those difficulties, and
to enact a law, which should do as much justice as possible to all the
states. But the committee are constrained to say, that this object ap-
pears to them not to have been obtained. The unequal operation of the
bill on some of the states, should it become a law, seems to the commit-
tee most manifest ; and they cannot but express a doubt, whetlier its
actual apportionment of the representative power among the several
states can be considered, as conformable to the spirit of the constitution.
The bin provides, that, from and after the third of Ma^ch, 1833, the
house of representatives shall be composed of noembers, elected agreea-
bly to a ratio of one representative for every forty-seven thousand and
seven hundred persons in each state, computed according to the rule
prescribed by the constitution. The addition of the seven hundred to
the forty-seven thousand, in the composition of this ratio, produces no
effect whatever in regard to <he constitution of the house. It neither
adds to, nor takes from, the number of members assigned to any state.
Its only effect is, a reduction of the apparent amount of the fractions, as
they are usually called, or residuary numbers, after the application of
the ratio. For all other purposes, the result is precisely the same, aa if
the ratio had been 47,000.
** As it seems generally admitted, that inequalities do exist in thisbill,
and that injurious consequences will arise from its operation, which it
would be desirable to avert, if any proper means of averting them, with-
out producing others equally injurious, could be found, the committee do
not think it necessary to go into a full and particular statement of these
consequences. They will content themselves with presenting a few
examples only of these results, and such as they find it most difficult to
reconcile with justice, and the spirit of the constitution.
^In exhibiting these examples, the committee must necessarily speak
of particular states ; but it is hardly necessary to say, that they speak of
them as examples only, and with the most perfect renpecl, not only for
the states themselves, but for all those, who represent them here.
" Althougli the bill does not commence by fixing the whole number of
the proposed house of representatives, yet the process adopted -by it
brings out the number of two hundred and forty members. Of these
two hundred and forty members, forty are assigned to the state of New-
York, that is to say, precisely one sixth part of the whole. This assign-
ment would seem to require, that New- York should contain one sixth
part of the whole population of the United States ; and would be bound
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156 CONSTITUTION OF THE V. STATES, [BOOK III.
veniences and collisions, which might arise from the
mterposition of a negative in times of high party ex-
citement. It extinguishes a constant source of jealousy
to pay one sixth part of all her direct taxes. Yet neither of these is the
case. The whole representative population of the United States is
11^,005 ; that of New-York is 1,918,623, which is less than one sixth
of the whole, hy nearly 70,000. Of a direct tax of two hundred and
forty thousand dollars. New- York would pay only $88.59. But if, in-
stead of comparing the numbers assigned to New- York with the whole
numbers of the house, we compare her with other states, the inequality
is still more evident and striking.
^ To the state of Vermont, the bill assigns five members. It gives,
therefore, eight times as many representatives to New- York, as to Ver-
mont ; but the population of New- York is not equal to eight times the
population of Vermont, by more than three hundred thousand. * Vermont
lias five members only for 280,657 persons. If the same proportion were
to be applied to New- York, it would reduce the number of her members
from forty to thirty-four — making a difference more than equal to the
whole representation of Vermont, and more than sufilcient to overcome
her whole power in the bouse of representatives.
<* A disproportion, almost equaHy striking, is manifested, if we com-
pare New- York with Alabama. The population of Alabama is 262,208;
for this, she is allowed five members. The rule of proportion, which
gives to her but five members for her number, would give to New- York
but thirty-six for her number. Yet New- York receives forty. As com-
pared with Alabama, then. New- York has an excess of representation
equal to four fifths of the whole representation of Alabama ; and this
excess itself will give her, of course, as much weight in the house, aa
the whole delegation of Alabama, within a single vote. Can it be said,
then, that representatives are apportioned to these states according to
(heir respective numhers f
^The ratio assumed by the bill, it will be perceived, leaves large frac-
tions, so called, or residuary numbers, in several of the small states,
to the manifest loss of a part of their just proportion of representative
power. Such is the operation of the ratio, in this respect, that New-
York, with a population less than that of New-England by thirty or
thirty-five thousand, has yet two more members, than all the New-Eng-
land states ; and there are seven states in the Union, whose members
amount to the number of 123, being a clear majority of the whole house,
whose aggregate fractions altogether amount only to fifly-three thou-
sand ; while Vermont and New- Jersey, having together but eleven mem-
bers, have a joint fraction of seventy-five thousand.
'< Pennsylvania by the bill will have, as it happens, just as many mem-
bers as Vermont, New-Hampshire, Massachusetts, and New- Jersey;
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CH. IX.] HOUS£ or REPRXSEHTATiySS. 167
and heart-burning ; and a disposition on one side to
exert an undue influence, and on the other, to assume
a hostile opposition. It relieves the executive depart-
but her population is not equal to theirs by a hundred and thirty thoo-
sand ; and the reason of this advantage, derived to her from the prorii-
ions of the bill, is, that her fraction, or residuum, is twelve thouMiid
only, while theirs is a hundred and forty-four.
" But the subject is capable of being presented in a more exact and
mathematical form. The house is to consist of two hundred and for^
members. Now the precise proportion of power, out of the whole mass
represented by the numbers two hundred and forty, which New- York
would be entitled to according to her population, is 38.59 ; that is to say,
she would be entitled to thirty-eight members, and would have a resi-
duum, or fraction ; and, even if a member were given her for that frac-
tion, she would still have but thirty-nine ; but the bill gives her forty.
" These are a part, and but a part, of those results produced by the
bill in its present form, which the committee cannot bring themselves to
approve. While it is not to be denied, that, under any rule of appor-
tionment, some degree of relative inequality must always exist, the
committee cannot believe, that the senate will sanction inequality and
injustice to the extent, in which they exist in this bill, if they can be
avoided. But recollecting the opinions, which had been expressed in
the discussions of the senate, the conmiittee have diligontiy sought to
learn, whether there was not some other number, which might be taken
for a ratio, the application of which would work out more justice and
equality. In this pursuit the committee have not been successful.
There are, it is true, other numbers, tho adoption of which would
relieve many of the states, which suffer under the present; but this
relief would be obtained only by shifting the pressure on to other
States, thus creating new grounds of complaint in other quarters,
'i e number f rty-four thousand has been generally spoken of, as the
most acceptable substitute for forty-seven thousand seven hundred^ but
should this be adopted, great relative inequality would fall on several
states, and, among them, on some of the new and growing states, whose
relative disproportion, thus already great, would be constantiy increas-
ing. The committee, therefore, are of opinion, that the bill should be
altered in the mode of apportionment They think, that the process,
which begins by assuming a ratio, should be abandoned, and that the
bill ought to be framed on the principle of the amendment, which has
been the main subject of discussion before the senate. The fairness of
the principle of this amendment, and the general equity of its results,
compared with those, which flow from the other process, seem plain and
undeniable. The main question has been, whether the principle itself
be constitutional ; and this question the committee proceeded to exam-
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158 CONSTITUTION OP THE V. STATES, [sdOK III.
ment from all the embarrassments of opposing tbe pop-
ular will ; and the house from all the irritation of not
consulting the cabinet wishes.
ine, respectfolly asking of those, who have doubted its constitutional
propriety, to deem the question of so much importance, as to justify a
second reflection.
^ The words of the constitution are, ' representatives and direct taxes
shall be apportioned among the several states, which may be included
within this Union, according to their respective numbers, which shall be
determined by adding to the whole number of free persons, including
those bound to service for a term of years, and excluding Indians, fliree
fifths of all other persons. The actual enumeration shall be made with-
in three years after the first meeting of the congress of the United States,
and within every subsequent term often years, in such manner, as they
shall by law direct The number of representatives shall not exceed
one for every thirty thousand, but each state shall have at least one
representative.'
** There would seem to be little difficulty in understanding these pro-
visions. The terms used are designed, doubtless, to be received in no
peculiar or technical sense, but according to their common and popular
acceptation. To apportion, is to distribute by right measure ; to set off^
in just parts ; to assign in due and proper proportion. These clauses of
the constitution respect, not only the portions of power, but the portions
of the public burden, also, which should fall to the several states ; and
the same language is applied to both. Representatives are to be appor-
tioned among the states according to their respective numbers, and di-
rect tuxes are to be apportioned by the same rule. The end aimed at
is, that representation and taxation should go hand in hand ; that each
state should be represented in the same extent, to which it is made sub-
ject to the public charges by direct taxation. But, between the appor-
tionment of representatives and the apportionment of taxes there neces-
sarily exists one essential difierence. Representation, founded on
numbers, must have some limit; and being, from its nature, a thing not
capable of indefinite subdivision, it cannot be made precisely equal. A
tax, indeed, cannot always, or often be apportioned with perfect exact-
ness ; as, in other matters of account, there will be fractional parts of
the smallest coins, and the smallest denomination of money of account,
yet, by the usual subdivisions of the coin, and of the denomination of
money, the apportionment of taxes is capable of being made so exact,
that the inequality becomes minute and invisible. But representation
cannot be thus divided. Of representation, there can be nothing leas
than one representative ; nor by our constitution, more representatives
than one for every thirty thousand. It is quite obvious, therefore, that
the apportionment of representative power can never be precise and
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OH. IX.]. HOUSE or BEPRSSEKTATIYES. 169
^ 686. The other power, the sole power of impeach-
ment, has a far wider scope and operation. An im-
peachment, as described in the common law of England*
perfecL There must always exiat aome degree of inequality. Tboae^
who framed, and thoae, who adopted the constitution, were, of course,
fully acquainted with this necessary operation of the profision. In the
senate, the states are entitled to a fixed nnmher of senators ; and, there-
fore, in regard to their representation, in that body, there is no conse-
quential or incidental inequality arising. But, being represented in the
house of representatives according to their respective numbers of people,
it is unavoidable, that, in assigning to each state its number of members,
the exact proportion of each, out of a given number, cannot always or
often be expressed in whde numbers ; that is to say, it will not often be
(bund, that there belongs to a state exactly one tenth, or one twentieth,
or one thirtieth of the whole house ; and, therefore, no number of rep-
resentatives will exactly correspond with the right of such state, or the
precise share of representation, which belongs to it, according to its
population.
" The constitution, therefore, must be understood, not as enjoining an
absolute relative equality — be'^ause that would be deoMnding an im-
possibility — but as requiring of congress to itiake the apportionment of
representatives among the several states, according to their respectiva
number8,^a# near a$ may he. That, which cannot be done perfectly, must
be done in a manner as near perfection, as can be. If exactness cannot,
from the nature of things, be attained, then the greatest practicable i^
pioach to exactness ought to be made.
^ Congress is not absolved from all rule, merely because the rule of
perfect justice cannot be applied. In such a case, approximation be*
comes a rule ; it takes the place of that other rule, which would be
preferable, but which is found inapplicable, ajid becomes, itself, an obli-
gation of binding force. The nearest approximation to exact truth, or
exact right, when that exact truth, or that exact right cannot itself be
reached, prevails in other cases, not as matter of discretion, but as an
intelligible and definite rule, dictated by justice, and conformiug to the
common sense of mankind ; a rule of no less binding force in cases, to
which it is applicable, and no more to be departed from, than any other
Tul^ or obligation.
^The committee understand the constitution, as they would have
understood it, if it had said, in so many words, that representatives
should be apportioned among the states, according to their respective
numbers, as ntar as may ht. If this be not its true mean'mg, then it has
either given» on this most delicate and important subject, a rule, which
is always impracticable, or else it has given no rule at all ; because, if
the role be, that representatives shall be apportioned txacUy according
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160 CONSTITUTION OF THE U. STATES, [BOOK III.
is a presentment by the house of commons, the most
solemn grand inquest of the whole kingdom, to the
house of lords, the most high and supreme court of
to numbers, it is impracticable in every case ; and if, for this reason, that
cannot be the rule, then there is no rule whatever, unless the rule be,
that they shall be apportioned, a$ ntar as may he.
^ This construction, indeed, which the committee adopt, has not, to
their knowledge, been denied ; and they proceed in the discussion of
the question before the senate, taking for granted, that such is the true
and undeniable meaning of the constitution.
^The next thing to be observed is, that the constitution prescribes
no particular process, by which this apportionment is to be wrought out.
It has plainly described the end to be accomplished, viz. the nearest
approach to relative equality of representation among the states ; and
whatever accomplishes this end, and nothing else, is the true process.
In truth, if, without any process whatever, whether elaborate or easy,
congress could perceive the exact proportion of representative power
rightfully belonging to each state, it would perfectly fulfil its duty by
conferring that portion on each, without reference to any process what-
ever. It would be enough, that the proper end had been attained. And
it is to be remarked further, that, whether this end be attained best by
one process or by another, it becomes, when each process has been
carried through, not matter of opinion, but matter of mathematical cer-
tainty. If the whole population of the United States, the population of
each state, and the proposed number of the house of representatives, be
all given, then, between two bills apportioning the members among the
several states, it can be told, with absolute certainty, which bill assigns
to any and every state the number nearest to the exar.t proportion of
that state ; in other words, which of the two bills, if either, apportions
the representatives according to the number of the states, respectively,
as near as may be. If, therefore, a particular process of apportionment
be adopted, and objection be made to the injustice or inequality of its
result, it is, surely, no answer to such objection to say, that the inequal-
ity necessarily results from the nature of the process. Before such
answer could avail, it would be necessary to show, either that the con-
stitution prescribes such process, and makes it necessary, or that there
is no other mode of proceeding, which would produce less inequality
and less injustice. If inequality, which might have otherwise been
avoided, be produced by a given process, then that process is a wrong
one. It is not suited to the case, and should be rejected.
" Nor do the committee perceive how it can be matter of constitu-
tional propriety or validity, or in any way a constitutional question,
whether the process, which may be applied to the case, be simple or
compound, one process or many processes ; since, in the end, it may
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CH. IX.] HOUSE OF REPRESXlTTATiyES. 161
criminal jurisdiction of the kingdom.^ The articles of
impeachment are a kind of bill of indictment found by
the commons, and tried by the lords, who are, in cases
always be seen, whether the result be that, which has been aimed at,
namely, the nearest practicable approach to precise justice and relative
inequality. .The committee, indeed, are of opinion, in this case, that
the simplest, and most obvious way of proceeding, is also the true and
constitutional way. To them it appears, that in carrying into effect thit
part of the constitution, the first tiling naturally to be done is, to decide
on the whole number, of which the house is to be composed ; as when,
nnder the same clause of the constitution, a tax is to be apportioned
among the states, the amount of the whole tax is, in the first place, to
be settled.
*' When the whole number of the proposed house is thus ascertained,
and fixed, it becomes the entire representative power of all the people
in the Union. It is then a very simple matter to ascertain how much of
this representative power each, state is entitled to by its numbers. If,
for example, the house is to contain 240 members, then the number 340
expresses the representative power of all the states ; and a plain cal-
culation readily shows how much of this power belongs to each state.
This portion, it is true, will not always, nor oflen, be expressed in whole
numbers, but it may always be precisely exhibitod by a decimsl form
of expression. If the portion of any state be seldom, or never, one ex-
act tenth, one exact fifteenth, or one exact twentieth, it will still alwaye
be capable of precise decimal expression, as one tenth and two hund-
redths, one twelflh and four hundredths, one fifteenth and six hund-
redths, and so on ; and the exact portion of the state, being thns deci-
mally expressed, will always show, to mathematical certainty, what
integral number comes nearest to such exact portion. For example,
in a house consisting of two hundred and forty members, the exact
mathematical proportion, to which her numbers entitle the state of New-
York, is 38.59 ; it is certain, therefore, that thirty^nine is the integral
or whole number, nearest to her exact proportion of the representative
power of the Union. Why, then, should she not have thirty-nine ? and
why should she have forty ? She is not quite entitled to thirty-nine ;
that number is something more than her right But, allowing her thirty-
nine, from the necessity of giving her whole numbers, and becaose that
is the nearest whole number, is not the constitution fuUy obeyed, when
she has received the thirty-ninth number? Is not her proper number of
representatives then apportioned to her, as near as may be ? And ie
not the constitution disregarded, when the bill goes further, and givee
I 2 Hale's PI. Comm. 150; 4 Black. Comm.250; 2 Wilson's Law
Lect 165, 166.
VOL. II. 21
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Itti CONSTITUTIOIf OF THfi U. STATES. [BOOK III.
of misdemeanors, considered^ not only as their own
p^rs, but as the peers of the whole nation.^ The
(Migin and history of the jurisdiction of parliament, m
her a fortieth member? For what is such a fortieth member given?
Not for her absolute numbers ; for her absolute numbers do not entitle
her to thirty-nine. Not for the sake of apportioning her members to
Ler numbers, as near as may be, because thirty-nine is a nearer ap-
portionment of members to numbers than forty. But it is given, say the
advocates of the bill, because the process, which has been adopted, give»
it The answer is, no such process is enjoined by the constitution.
** The case of New York may be compared or contrasted with that
of Missouri. The exact proportion of Missouri, in a general representa-
tion of two hundred and forty, is twa and six tenths ; that is to say, it
comes nearer to three members, than to two, yet it is confined to two.
But why is not Missouri entitled to that number of representatives,
which comes nearest to her exact proportion ? Is the constitution ful-
filled as to her, while that number is withheld, and while, at the same
time, in another state, not only is that nearest number given, hot an
additional tnember given also ? Is it an answer, with which the people
of Missouri ought to be satisfied, when it is said, that this obviou9 in-
justice is the necessary result of the process adopted by the bill ? Msy
they not say, with propriety, that since three is the nearest whole num-
ber to their exact right, to that number they are entitled, and the pro-
cess, which deprives them of it, must be a wrong process ? A similar
comparison might be made between New- York and Vermont The
exact proportion, to which Vermont is entitled, in a representation of
two hundred and forty, is 5.646. Her nearest whole number, there-
fore, would be six. Now, two things are undeniably true : first, that %^
take away the fortieth member from New- York would bring her rep-
resentation nearer to her exact proportion, than it stands by leaving her
that fortieth member. Secondly, that giving the member, thus takeo
from New- York, to Vermont, would bring her representation nearer
to her exact right, than it is by the bill And both these propositions
are equally true of a transfer of the twenty-eighth member assigned
by the bill to Pennsylvania, to Delaware, and of the thirtoenth member
assigned to Kentucky, to Missouri ; in other words, Vermont has, by
her numbers, more right to six members, than New- York has to forty.
Delaware, by her numbers, has more aright to two members, than
Pennsylvania has to twenty-eight ; and, Missouri, by her numbers, has
more right to three members, than Kentucky has to thirteen. Without
disturbing the proposed number of the house, the mere changing of
these three members, from and to the six statos respectively, would
1 4 Black. Comm. 260.
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CH. IX.] HOUSE or RXPRESEirrATirKS. 103
cases of impeachment, are summarily given by Mr.
Woodeson ; but litde can be gathered from it, which is
now of much interest, and, like most other legal anti-
bring the representation of each of the whole six nearer to their dde
proportion, according to their respective numbers, than the bill, in fti
present form makes it. In the face of this indisputable truth, how can
it be said, that the bill apportions these members among those states,
according to their respective number, (u near aa may ht 1
^ The principle, on which the proposed amendment is founded, is an
effectual corrective fo|r these, and all other equally great inequalitiess.
It may be applied, at all times, and in all cases, and its result will
always be the nearest approach to perfect justice. It is equally simple
and impartial. As a rule of apportionment, it is little other than a trans-
cript of the words of the constitution, and its results are mathematically
certain. The constitution, as the committee understand it, says, repre-
sentatives shall be apportioned amoug the states, according to their
respective numbers of people, as near as may be. The rule adopted by
the committee says, out of the whole number of the house, that number
shall be apportioned to each state, which comes nearest to its exact
right, according to its number of people.
** Where is the repugnancy between the constitution and the rule ?
The arguments against the rule seem to assume, that there is a necessi-
ty of instituting some process adopting some number as the ratio, or as
that number of people, which each member shall be understood to rep-
resent ; but the committee see no occasion for any other process what-
ever, than simply the ascertainment of that qwtnium^ out of the whole
mass of the representative power, which each state may claim.
* But it is said, that, although a state may receive a number of re|>-
resentatives, which is something less than its exact proportion of repre-
sentation, yet, that it can, in no case, constitutionally receive more.
How is this proposition proved ? How is it shown, that the constitntidn
is less perfectly fulfilled by allowing a state a small excess, than by
subjecting her to a large deficiency ? What the constitution requires,
is the nearest practicable approach to precise justice. The rule is
approximation ; and we ought to approach, therefore, on whichever
side we can approach nearest
"But there is stUl a more conclusive answer to be given to this
suggestion. The whole number of representatives, of which the house
is to be composed, is, of necessity, limited. This number, whatever it
is, is that which is to be apportioned, and nothing else can be apportion-
ed. This is the whole sum to be distributed. If, therefore, in making
the apportionment, some state receive less than their just share, it must
necessitrily follow, that some other states have received more than their
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164 COKSTUTITION OF THEU. STATES. [BOOK III.
quides, it is involved in great obscurity.* To what
classes of offenders it applies, will be more properly
an inquiry hereafter. In the constitution of the United
just share. If there be one state in the Union with less than its rights
some other state has more than its right, so that the argument, whatever
be its force, applies to the bill in its present form, as strongly as it can
ever apply to any bill.
'^ Bat the objection most usually urged against the principle of the
proposed amendment ii, that it provides for the representation of frac-
tions. Let this objection be examined and considered. Let it be ascer-
tained, in the first place, what these fractions, or fractional numbers, or
residuary numbers, really are, which, it is said, will be represented,
should the amendment prevail.
^ A fraction b the broken part of some integral number. It is, there-
fore, a relative or derivative idea. It implies the previous existence of
eome fixed number, of which it is but a part, or remainder. If there be
no necessity for fixing or establishing such previous number, then the
fraction, resulting from it, is itself no matter of necessity, but matter of
choice or of accident Now the argument, which considers the plan
proposed in the amendment, as a representation of fractions, and there-
fi^re unconstitutional, assumes, as Its basis, that, according to the con-
etitution, every member of the house of representatives represents, or
ought to represent, the same, or nearly the same, number of constituents;
that this number is to be regarded, as an integer ; and any thing less
than this is, therefore, called a fraction, or a residuum, and cannot be
entitled to a representative. But all this is not the provision of the
constitution of the United States. That constitution contemplates no
integer, or any common number for the constituents of a member of
the house of representatives. It goes not at all into these subdivisons
of the population of a state. It provides for the apportionment of rep-
resentatives among the several states, according to their respective
numbers, and stops there. It makes no provision for the representation
of districts, of states, or for the representation of any portion of the
people of a state, less than the whole. It says nothing of ratios or of
constituent numbers. All these things it leaves to state legislation.
The right, which each state possesses to its own due portion of the
representative power, is a state right, strictly ; it belongs to the state,
as a state ; and it is to be used and eipercised, as the state may see fit,
eobject only to the constitutional qualifications of electors. In fact,
the states do make, and always have made, different provisions for the
exercise of this power. In some, a single member is chosen for a
certain defined district ; in others, two or three members are chosen
1 2 Woodeson's Lect 40, p. 59G, &c.
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CH. IX.] HOUSE or R£PR£S£irTATiy£S. 1 66
States, the house of representatives exercises the fiinc-
tions of the house of commons in regard to impeach-
ments ; and the senate (as we shall hereafter see) the
for the same district; and, in some again, as New-Uampsbire, Rhode-
Island, Connecticut, New-Jersey, and Georgfia, the whole representa-
tion of the state is exerted, as a joint, undivided representation. In
these last-mentioned states, every member of the house of representa-
tives has for his constituents all the people of the state ; and all the
people of those states are consequently represented in that branch of
congress. If the bill before the senate should paw into a law, in its
present form, whatever injustice it might do to any of those states, it
would not be correct to say of them, nevertheless, that any portion of
their people was unrepresented. The well-founded objection would
be, as to some of them at least, that they were not adequately, com-
petently, fairly represented ; that they had not as many voices and as
many votes in the house of representatives, as they were entitled to.
This would be the objection. There would be no unrepresented frac-
tions ; but the state, as a state, as a whole, would be deprived of some
part of its just rights.
" On the other hand, if the bill should pass, as it is now proposed to
be amended, there would be no representation of fractions in any state ;
for a fraction suppo:jes a division and a remainder. All, that could
justly be said, would be, that some of these states, as states, possessed
a portion of legislative power, a little larger than their exact right ; as
it must be admitted, that, should the bill pass unamended, they would
possess, of that power, much less than that exact right. The samo
remarks are substantially true, if applied to those states, which adopt
the district system, as most of them do. In Missouri^ for example, there
will be no fraction unrepresented, should the bill become a law in its
present form ; nor any member for a fraction, should the amendment
prevail ; because the mode of apportionment, which assigns to each
state that number, which is nearst to its exact right, applies no assum-
ed ratios, makes.no subdivisions, and, of course, produces no frnctions.
In the one case, or in the other, the state, as a state, will have some-
thing more, or something less, than its exact proportion of representa-
tive power ; but she will part out this power among her own people, in
either case, in such mode, as hhe may choose, or exercise it altogether,
as an entire representation of the people of the state.
"Whether the subdivision of the representative power within any
state, if there be a subdivision, be equal or unequal, or fairly or unfairly
made, congress cannot know, and has no authority to inquire. It is
enough, that the state presents her own representation on the j9oor of
congress in the mode she chooses to present it If a state were to give
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166 CO^rSTITUTION of the v. states, [book III.
functions of the house of lords in relation to the trial of
the party accused. The principles of the common
law, so far as the jurisdiction is to be exercised, are
to one portion of her territory a representative for every twenty-five
tiMQsand persons, and to the rest a representative only for every fifty
thouaand, it would be an art of unjust legislation, doubtless, but it would
be wholly beyond redress by any power in congress ; because the con-
stitution has left all this to the state itself.
** These considerations, it is thought, may show, that the constitution
has not, by any implication, or necessary construction, enjoined that,
which it certainly has not ordained in terms, viz. that every member of
the house shall be supposed to represent the same number of constitu-
ents ; and therefore, that the assumption of a ratio, as representing the
common number of constituents, is not called for by the constitution.
All that congress is at liberty to do, as it would seem, is to divide the
whole representative power of the Union into twenty-four parts, assigning .
one part to each state, as near as practicable, according to its right,
and leaving all subsequent arrangement, and all subdivisions, to the
atate itself.
** If the view thus taken of the rights of the states, and the duties of
coogress, be the correct view, then the plan proposed in the amend-
mem is, in no just sense, a representation of fractions. But suppose it
was otherwise ; suppose a direct division were made for allowing a rep-
resentative to every state, in whose population, fit being first divided by
a common ratio, there should be found a fraction exceeding half the
amount of that ratio, what constitutional objection could be fairly urged
against such a provision ? Let it be always remembered, that the case
here supposed provides only for a ft'acdon exceeding the moiety of the
ratio ; for the committee admit, at once, that the representation of frac-
tions, less than a moiety, is unconstitutional ; because, should a mem-
ber be allowed to a state for such a fraction, it would be certain, that
her representation would not be so near her exact right, as it was be-
fore. But the allowance of a member for a major fraction is a direct
approximation towards justice and equality. There appears to the com-
mittee to be nothing, either in the letter or the spirit of the constitu-
tion, opposed to such a mode of apportionment On the contrary, it
seems entirely consistent with the very object, which the constitution
contemplated, and well calculated to accomplish it The argument com-
monly urged against it is, that it is necessary to apply some one com-
mon divisor, and to abide by its results.
** If, by this, it be meant, that there must be some common rule, or
common measure, applicable, and applied impartially to all the states, it is
quite true. But, if that which is intended, be, that the population of each
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C& IX.] HOUSJB OF REPRESEXTATIVES. 167
deemed of primary obligation and govemmcBt The
object of prosecutions of this sort m both coontries is
to reach high and potent offenders, such as might be
state must be divided by a fixed ratio, and all resulting fractions, great
or small, disregarded, this is but to take for granted the very thing ia
controversy. The question is, whether it be unconstitutioDal to make
approximation to equality, by allowing representatives for major frac-
tions. The affirmative of this question is, indeed, denied ; but it is not
disproved, by saying, that we must abide by the operation of division^
by an assumed ratio, and disregard fractions. The question still re-
mains, as it was before ; and it is still to be shown, what there is in the
constitution, which rejects approximation, as the rule of apportionment.
But suppose it to be necessary to find a divisor, and to abide its results^
What is a divisor ? Not necessarily a simple number. It may be com*
posed of a whole number and a fraction ; it may itself be the result ofe
previous process ; it majr be any thing, in short, which produces ac^*
curate and uniform division : whatever does this, is a common mle, e
common standard, or, if the word be important, a common divisor. The
committee refer, on this part of the case, to some observations by Pro*
feasor Dean, with a table, both of which accompany this report
** As it is not improbable, that opinion has been a good deal infla>-
enced on this subject by what took place on the passing of the first act^
making an apportionment of representatives among the states, the com-
mittee have examined and considered that precedent If it be in point
to the present case, it is certainly entitled to very great weight ; bat if it
be of questionable application, the text of the constitution, even if it
were doubtful, could not be explained by a doubtful commentary. In
the opinion of the committee, it is only necessary, that what was said oa
that occasion should be understood in connexion with tlie subject-mat'
ter then under consideration ; and, in order to see what that subject-
matter really was, the committee think it necessary to state, shortly, the
case.
*^ The two houses of congress passed a bill, after tlie first enumera-
tion of the people, providing for a house of representatives, which should
. consist of one hundred and twenty members. The bill expressed no-
rule or principle, by which these members were assigned to the several^
states. It merely said, that New-Hampshire should have five members,.
Massachusetts ten, and so on ; going through all the states, and as-
signing the whole number of one hundred and twenty. Now, by the
census, then recently taken, it appeared, that the whole representative
population of the United States was 8,6I5,9!20 ; and it was evidently the
wish of congress to make the house as numerous, as the constitution
would allow. But the constitution has said, that there should not be
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168 CONSTITUTION OF THE U. STATES. [bOOK 111.
presumed to escape punishment m the ordmary tribu-
nals, either from their own extraordinary influence, or
from the imperfect organization and powers of those
more than one member for every thirty thousand persons. This prohi-
bition was, of course, to be obeyed ; but did the constitution mean, that
no states should have more than one member for every thirty thousand
persons ? or did it only mean, that the whole house, ns compared with
the whole population of the United States, should not contain more than
one member for every thirty thousand persons ? If this last were the
true construction, then the bill, in that particular, was right ; if the first
were the true construction, then it was wrong ; because so many mem-
bers could not be assigned to the states, without giving to some of them
more members than one for every thirty thousand. In fact, the bill did
propose to do this in regard to several stntes.
" President Washington adopted that construction of the constitution,
which applied its prohibition to each state individually. He thought,
that no state could, constitutionally, receive more than one member for
every thirty thousand of her own population. On this, therefore, his
main objection to the bill was founded. That objection he states in
these words :
** * The constitution has also provided, that the number of lepresenta-
tifcs shall not exceed one for every thirty thousand ; which restriction
is, by the context, and by fair and obvious construction, to be applied to
the separate and Respective numbers of the states ; and the bill has
allotted to eight of the states more than one for every thirty thou-
sand.'
** It is now necessary to see what there was further objectionable in
this bill. The number of one hundred and twelve members was all that
could be divided among the states, without giving to some of them more
. than one member for thirty thousand inhabitants. Therefore, having
allotted these one hundred and twelve, there still remained eight of the
one hundred and twenty to be assigned ; and these eight the bill as-
signed to the states having the largest fractions. Some of these frac-
tions were large, and some were small. No regard was paid to frac-
tions over a moiety of the ratio, any more than to fractions under it.
There was no rule laid down, stiting what fractions should entitle the
states, to whom they might happen to fall, or in whose population they
might happen to be found, to a representative therefor. The assign-
ment was not made on the principle, that each state should have a mem-
ber for a fraction greater than half the ratio ; or that all the states
should have a member for a fraction, in all cases where the allowance of
such member would bring her representation nearer to its exact propor-
tion than its disallowance. There was no common measure, or common
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CH. IX.] HOUSE or REPRESENTATiyES. 169
tribunals.* These prosecudons are, therefore, con-
ducted by the representatives of the nation, in their
public capacity, in the face of the nation, and upon a
rule, adopted, but the assignment was matter of arbitrary diaeretion.
A member was allowed to New-Hampsbire, for example, for a fraction
of less than one half the ratio, thus placing her representation fhrther
from her exact proportion, than it was without such additional member ;
while a member was refused to Georgia, whose case closely resembled
that of New-Hampshire, both having what were thought large fractions,
but both still under a moiety of the ratio, and distinguished from each
other only^by a very slight difference of absolute numbers. The com-
mittee have already fully expressed their opinion on such a mode of
apportionment
** In regard to this character of the bill. President Washington said :
* The constitution has prescribed, that representatives shall .be appor-
tioned among the several states according to their respective numbers ;
and there is no one proportion, or divisor, which, applied to the respec-
tive numbers of the states, will yield the number and allotment of rep-
resentatives proposed by the bill.'
^ This was all undoubtedly true, and was, in the judgment of the com-
mittee, a decisive objection against the b'dl. It is nevertheless to be ob-
served, that the other objection completely covered the whole ground.
There could, in that bill, be no allowance for a fraction, great or small ;
because congress had token for the ratio the lowest number allowed by
the constitution, viz. thirty thousand. Whatever fVartion a state might
have less than that ratio, no member could be allowed for it It Is
scarcely necessary to observe, that no such objection applies to the
.ameudroeut now proposed. No state, should the amendment prevail,
will have a greater number of members than one for every thirty thou-
sand ; nor is it likely, that that objection will ever again occur. The
whole force of the precedent, whatever it be, in its application to the
present case, is drawn fVom the other objection. And what is the true
import of that objection ? Does it mean any thing more than, that the
apportionment was not made on a common rule or principle, applicable,
and applied alike to all the states ?
" President Washington's words are, « there is no one proportion or
divisor, which, applied to the respective numbers of the states, will yield
the number and allotment of representatives proposed by the bill.'
" If, then, he could have found a common proportion, it would have
removed thb objection. He required a proportion or divisor. These
1 4 Black. Comm. 260 ; Rawle on the Constitution, ch. S2, p. )210, Oil •
2 Woodeson's Lect 40, p. 596, &c
VOL. IL 22
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170 COirSTlTUTION or the v. states. [book III.
responsibility, which is at once felt, and reverenced by
the whole community.^ The notoriety of the proceed-
ings ; the solemn manner, in which they are conducted ;
words be evidently uses, as explanatory of each other. lie meant by
iKviMrr, therefore, no more than by ftfrpoiriwn. What be sought
was, some common and equal rule, by which the allotment had been
made among the several states ; he did not find such common rule ; and
on that ground, he thought the bill objectionable.
*'In the opinion of the committee, no such objection applies to the
amendment recommended by them. That amendment gives a rule,
plain, simple, just, uniform, and of universal application. Tiie rule has
been frequently stated. It may be clearly expressed in either of two
ways. Let the rule be, that the whole number of the proposed house
ghall be apportioned among the several states according to their respec-
tive numbers, giving to each state that number of members, which comes
nearest to her exact mathematical part or proportion ; or, let the rule
be, that the population of each state shall be divided by a common
divbor, and that, in addition to the number of members resulting from
such division, a member shall be allowed to each state, whose fraction
exceeds a moiety of the divisor.
^ Either of these is, it seems to the committee, a fair and just rule,
capable of uniform application, and operating with entire impartiality.
There is no want of a common proportion, or a common divisor ; there
is nothing lefl to arbitrary discretion. If the rule, in either of these
forms, be adopted, it can never bo doubtful how every member of any
proposed number for a house of representatives ought to be assigned.
Nothing will be left in the discretion of congress ; the right of each state
will be a mathematical right, easily ascertained, about which there
can be neither doubt nor difficulty ; and, in the application of the rule,
there will be no room for preference, partiality, or injustice. In any
case, in all time to come, it will do all, that human means can do^ to
allot to every state in the Union its proper and just proportion of repre-
sentativo power. And it is because of this, its capability of constant
application, as well as because of its impartiality and justice, that the
committee are earnest in recommending its adoption to congress. If it
shall be adopted, they believe it will remove a cause of uneasiness and
dissatisfaction, recurring, or liable to recur, with every new census, and
place the rights of the states, in this respect, on a fixed basis, of which
none can with reason complain. It is true, that there may be some
numbers assumed for the composition of the house of representatives, to
which, if the rule were applied, the result might give a member to the
1 Rawle on the Constitution, ch. )23, p. 209.
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CH. IX.] HOUSE or REPRXSISKTATiyES. 171
th^ d ^ »n extent, to which they aflfect the reputations of
the accused ; the ignominy of a conviction, which is to
be known through all time ; and the glory of an acquittal,
which ascertains and confirms innocence ; — these are
all calculated to produce a vivid and lasting interest in
the public mind ; and to give to such prosecu on ,
when necessary, a vast importance, both as a check to
crime, and an incitement to virtue.
§ 687. This subject will be resumed hereafter, when
the other provisions of the constitution, m regard to
impeachments, come under review. It does not ap-
pear, that the vesting of the power of impeachment in the
house of representatives was deemed a matter of serious
doubt or question, either in the convention, or with the
people.^ If the true spirit of the constitution is consulted,
it would seem difficult to arrive at any other CQnclusion,
than of its fitness. It is designed, as a method of na-
tional inquest into the conduct of public men. If such
is the design, who can so properly be the inquisitors
bouse more than was proposed. But it will be always easy to correct
tbis, by altering the proposed number by adding one to it, or taking one
from it ; so that tbis can be considered no objection to the rule.
^ The committee, in conclusion, cannot admit, that it is sufficient rea-
son for rejecting tbis mode of apportionment, that a different process
has heretofore prevailed. The truth is, the errors and inequalities of
tliat process were at first not obvious and startling. But they have
gone on increasing ; they are greatly augmented and accumulated every
new census; and it is of the very nature of the process itself, that its
unjust results must grow greater and greater in proportion as the popu-
lation of the country enlarges. What was objectionable, though toler-
able yesterday, becomes intolerable to-morrow. A change, the com-
mittee are persuaded, must come, or the whole just balance and pro-
portion of representative power among the states will be disturbed and
broken up."
Mr. Everett also made a very able speech on the same subject, in
whieh ho pressed some additional arguments with great force on the
same side. See his printed Speech of l7Lh May, \83r'l.
* Journal of Convention, p. 69, 121, 137, 225, 226, 236 ; 3 EUiot's De-
bates, 43, 44, 45, 46.
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172 coNSTiTunoir of ths v. states, [book hi.
for the nation, as the representatives of the people
themselves ? They must be presumed to be watchful
of the interests, alive to the sympathies, and ready to
redress the grievances, of the people. If it is made
their duty to bring official delinquents to justice, they
can scarcely fail of performing it without public denun-
ciation, and political desertion, on the part of their con-
stituents.
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CH. X.] THE SENATX. 173
CHAPTER X.
THE SENATE.
^ 638. The third section of the first article relates
to the organization and powers of the senate.
§ 689. In considering the organization of the senate,
our inquiries naturally lead us to ascertain ; first, the
nature of the representation and vote of the states there-
in ; secondly, the mode of appomtment ; thirdly, the
number of the senators ; fourthly, their term of service ;
and fifthly, their qualifications.
§ 690. The first clause of the third section is in the
following words : " The senate of the United States
^ shall be composed of two senators from each state,
^ chosen by the legislature thereof for six years ; and
** each senator shall have one vote,'^
§ 691. In the first place, the nature of the represen-
tation and vote m the senate. Each state is entitled to
two senators ; and each senator is entitled to one vote.
This, of course, mvolves in the very constitution of this
branch of the legislature a perfect equality among all
the states, without any reference to their respective
size, population, wealth, or power. In this respect
there is a marked contrast between the senate and the
house of representatives. In the latter, there is a repre-
senation of the people according to the relative popu-
lation of each state upon a given basis ; in the former,
each state in its political capacity is represented upon
a footing of perfect equality, like a congress of sove-
reigns, or ambassadors, or like an assembly of peers.
The only difference between it and the continental
coi^ess under the old confederation is, that in this
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174 CONSTITUTION OF THE V. STATES. [bOOK III.
the vote was by states ; in the senate, each senator
has a single vote. So that, though they represent
states, they vote as individuals. The vote of the sen-
ate thus may, and often does, become a mixed vote,
embracing a part of the senators from some of the states
on one side, and another part on the other.
^ 692. It is obvious, that this arrangement could only
aH>e from a compromise between independent states ;
and it must have been less the result of theory, than "of
a spirit of amity, and of mutual deference and conces-
sion, which the peculiarity of the situation of the United
States rendered indispensable." * It constituted one
of the great struggles between the large and the small
states, which was constantly renewed in the conven-
tion, and impeded it in every step of its progress in the
formation of the constitution.* The struggle applied to
the organization of each branch of the legislature. The
small states insisted upon an equality of vote and rep-
resentation m each branch ; and the large states upon
a vote in proportion to their relative importance and
population. Upon this vital question there was so near
a balance of the states, that a union in any form of gov-
ernment, which provided either for a perfect equality or
inequality of the states in both branches of the legisla-
ture, became utterly hopeless.' If the basis of the
senate was an equality of representation, the basis of
the, house must be in proportion to the relative popula-
tion of the states.^ A compromise was, therefore, in-
1 Letter of the Convention, 17th Sept 1787 ; 1 Kent Comm. $ 11, p.
210,211.
3 2 Pitkin*8 Hist 233, 245, 247, 248 ; Yates's Minutes, 4 £lliot's De-
bates, 68, 74, 75, 81, 89, 90, 91, 92 ; Id. 99, 100, 101 ; Id. 107, 108, 112
to 1*^4; Id. 125, 126, 127 ; 1 Elliot's Debates, 66.
3 2 Pitkin's Hist 233, 245; Journal of the Convention, 112.
4 On this subject see the Journal of the Convention, 111, 112, 153 to
158, 162, 178, 180, 235, 236, 237, 238 ; Yate's Minutes, 4 Ellioes De-
bates, from 68 to 127.
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CH. X.] THE SENATE. 175
dispensable, or the convention must be dissolved. The
small states at length yielded the point, as toanequ.tliiy
of representation in the house, and acceded to a repre-
sentation proportionate to the federal numbers. But
they insisted upon an equality in the senate. To this
the large states were unwilling to assent ; and for a
time the states were, on this point, equally divided.*
Finally, the subject was referred to a committee, who
reported a scheme, which became, with some amend-
ments, the basis of the representation, as it now stands.*
^ 693. The reasoning, by which each party in the
convention supported its own project, naturally grew
out of the relative situation and interests of their respec-
tive states. On the side of the small states, it was
urged, that the general government ought to be partly
federal, and partly national, in order to secure a just
balance of power and sovereignty, and influence among
the states. This is the only means to preservfe small
communities, when associating with larger, from being
overwhelmed, and annihilated. The large states, under
other circumstances, would naturally pursue their own
interests, and by combinations usurp the prerogatives,
or disregard the rights of the smaller. Hitherto, all the
states had held a fooung of equality ; and no one would
now be willing to surrender it. The course now pro-
posed would allay jealousies, and produce tranquillity.
Any other would only perpetuate discontents, and lead
to disunion. There never was a confederacy formed,
where an equality of voice was not a fundamental prin-
ciple. It would be a novel thing in politics, in such
1 2 Pitkin's Hist. 245; Journal of Convention, 2d July, p. 156, 158 ;
Id. 162, 175, 178, 180, 21 1 ; Yates's Minutes, 4 £lliot's Debutes, 124 to
127; 2 Amer. Museum. «'^9.
* 1 Ellioc'8 Debates, 67 ; Journal of Conventioo, 157.
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176 CONSTITUTIOK OF THE U. STATES. [BOOK III.
cases, to permit the few to control the many. The
large states, upon the present plan, have a full security.
The small states must possess the power of self-defence,
or they are ruined.
^ 694. On the other hand, it was urged, that to give
an equality of vote to all the states, was adopting a
principle of gross injustice and inequality. It is not
true, that all confederacies have been founded upon
the principle of equality. It was not so in the Lycian
confederacy. Experience has shown, that the old con-
federation is radically defective, and a national govern-
ment is indispensable. The present plan will defeat
that object Suppose the first branch grants money ;
the other branch (the senate) might, from mere state
views, counteract it. In congress, the single state of
Delaware prevented an embargo at the time, when all
the other states thought it absolutely necessary for the
support of the army. In short, the senate will have
the power by its negative of defeating all laws. If this
plan prevails, seven states will control the whole ; and
yet these seven states are, in point of population and
strength, less than one third of the Union. So, that
two thirds are compellable to yield to one third. There
is no danger to the small states from the combination
of the large ones. A rivalry, rather than a confederacy,
will exist among them. There can be no monarchy ;
and an aristocracy is more likely to arise from a com-
bination of the small states. There are two kinds of
bad governments ; the one, which does too much, and
is therefore oppressive ; and the other, which does too
little, and is therefore weak. The present plan will
fasten the latter upon the country. The only reasona-
ble principle, on which to found a general government,
is, that the decision shall be by a majority of members,
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CH. X.] THE SEN ATX. 177
and not of states. No advantage can possibly be pro-
posed by the large states by swallowing up the smcdler.
The like fear existed in Scotland at the time of the
union with England ; but it has turned out to be wholly
without foundation. Upon the present plan, the smaller
states may swallow up the larger. It was added by
one most distinguished statesman,^ (what has hitherto
proved prophetically too true,) that the danger was not
between the small and the large states. ** The great
danger to our general government is, the great southern
and northern interests of this continent bemg opposed
to each other. Look to the votes in congress, and
most of them stand divided by the geography of the
country, not according to the size of the states.***
§ 695. Whatever may now be thought of the rea-
soning of the contendmg parties, no person, who pos-
sesses a smcere love of country, and wishes for the per-
manent union of the states, can doubt, that the com-
promise actually made was well founded m policy, and
may now be fully vindicated upon the highest principles
of political wisdom, and the true nature of the gov-
ernment, which was intended to be established.
^ 696. It may not be unprofitable to review a few
of the groimds, upon which this opmion is hazarded.
In the first place, the very structure of the general gov-
ernment contemplated one partly federal, and partly
national. It not only recognised the existence of die
state governments ; but perpetuated them, leaving them
1 Mr. iMadison.
^ This sumraaiy is abstracted principally from Yates's liinutes of the
Debates, and Lather Martin's Letter and Speech, January 37, 1788.
See Martin's Letter in 4 EUliot's Debates, 1 to 55. See Yates's Minutes
in 4 Elliot's Debates, 68 ; Id. 74, 75, 81, 89 to 93, 99 to 10S2, 107, 108,
113 to 137; 3 Pitkin's Hist 333 to 348. See also The Federalist,
No. 33.
VOL. IL 23
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17d CONSTITUTION OF THE IT. STATES. [bOOK III.
m the enjoyment of a large portion of the rights of
sovereignty, and giving to the general government a
few powers, and those only, which were necessary for
national purposes. The general government was,
therefore, upon the acknowledged basis, one of limited
and circumscribed powers ; the states were to possess
the residuary powers. Admitting, then, that it is right,
among a people thoroughly incorporated into one na-
tion, that every district of territory ought to have a pro-
portional share of the government ; and that among
mdependent states, bound together by a simple league,
there ought, on the other hand, to be an equal share in
the common councils, whatever might be their relative
size or strength, (both of which propositions are not
easily controverted ;) it would follow, that a compound
republic, partaking of the character of each, ought to
be founded on a mixture of proportional, and of equal
representation.^ The legislative power being that,
which is predominant in all governments, ought to be,
above all, of this character ; because there can be no
security for the general government, or the state gov-
ernments, without, an adequate representation, and an
adequate check of each in the functions of legislation.
Whatever basis, therefore, is assumed for one branch of
the legislature, the antagonist basis should be assumed
for the other. If the house is to be proportional to the
relative size, and wealth, and population of the states,
the senate should be fixed upon an absolute equality,
as the representative of state sovereignty. There is
so much reason, and justice, and security in such a
course, that it can with difficulty be overlooked by
those, who sincerely consult the public good, without
1 The Pedefalist, No. 62 ; 2 Amer. Museum, 376, 379.
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CH. X.] THE SENATE. 179
being biassed by the interests or prejudices of their
peculiar local position. The equal vote allowed in the
senate b, in this view, at once a constitutional recogni- /
tion of the sovereignty remaining in the states, and any
instrument for the preservation of it. It guards them
against (what they meant to resist, as improper) a con-
scdidation of the states into one simple republic ; ^ and^
on the other hand, the weight of the other branch
counterbalances an undue preponderance of state in-
terests, tending to disunion.
§ 697. Another and most important advantage aris-
ing from this ingredient is, the great difference, which
it creates in the elements of the two branches of the
legislature ; which constitutes a great desideratum in
every practical division of the legislative power.' In
fact, this division (as has been already intimated) is of
little or no intrinsic value, unless it is so organised, that
each can operate, as a real check upon undue and rash
legislation,/ If each branch is substantially framed upon
the same plan, the advantages of the division are shad-
owy and imaginative ; the visions and speculations of
the brain, and not the waking thoughts of statesmen, or
patriots. It may be safely asserted, that for all the
purposes of liberty, and security, of stable lAws, and of
solid institutions, of personal rights, and of the protection
of property, a single branch is quite as good, as two, if
their composition is the same, and their spirits and im-
pulses the same. Each wdll act, as the other does ;
and each will be led by the same common influence of
ambition, or intrigue, or passion, to the same disregard
1 The Federalist, No. 62 ; Rawle on Constit 86, 37; 1 EcdU Comm.
Lect 11, p. 210, 211 ; 2 Amer. Museum, 376, 379 ; 1 Tucker's Black.
Cknnm. App. 195.
2 2 Wilson's Law Lect 146, 147, 148.
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180 CONSTITUTION OF TlBE U. STATES. [bOOK III.
of the public interests, and the same indiflference to,
and prostration of private rights. It will only be a du-
plication of the evils of oppression and rashness, with a
duplication of obstructions to effective redress. In this
view, the organization of the senate becomes of inesti-
mable value. It represents the voice, not of a district,
but of a state ; not of one state, but of all ; not of the
interest of one state, but of all; not of the chosen pur-
suits of a predominant population in one state, but of
all the pursuits in all the states.
§ 6&8. It is a misfortune incident to republican gov-
ernments, though in a less degree than to other govern-
ments, that those, who administer it, may forget their
obligations to their constituents, and prove unfaithful to
their trusts. In this point of view, a senate, as a sec-
ond branch of le^slative power, distinct fix)m, and di-
viding power with the first, must always operate as a
salutary check. It doubles the security to the people,
by requiring the concurrence of two distinct bodies in
any scheme of usurpation or perfidy, where otherwise
the ambition of a single body would be sufficient The
improbability of sinister combinations will always be in
proportion to the dissimilarity of the genius of the two
bodies ; and therefore every circumstance, consistent
¥dth harmony in all proper measures, which points out
a distinct organization of the component materials of
each, is desirable.^
§ 699. No system could, in this respect, be more
admirably contrived to ensure due deliberation and
mquiry, and just results m all matters of legislation.
No law or resolution can be passed without the con-
currence, first of a majority of the people, and then of
1 The Federalist, No. 62.
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CH. X.] THE SBITATS. 181
a majority of the states. The mterest, and passions,
and prejudices of a district are thus checked by the
influence of a whole state; the like ^ interests, and
passions, and prejudices of a state, or of a majority of
the states, are met and controlled by the voice of the
people of the nation.^ It may be thought, diat this
complicated system of checks may operate, in some
instances, injuriously, as well as beneficiaUy. But if
it should occasionally work inequally, or injuriously, its
general operation will be salutary and useful.* The
disease most incident to free governments is the facil-
ity and excess of law-making ;' and while it never can
be the permanent mterest of either branch to interpose
any undue restraint upon the exercise of all fit legis-
lation, a good law had better occasionally fail, rather
than bad laws be multiplied with a heedless and mis-
chievous frequency. Even reforms, to be safe, must,
in general, be slow ; and there can be little danger,
that public opinion will not sufficiently stimulate all
public bodies to changes, wliich are at once desirable,
and politic. All experience proves, that the human
mmd is more eager and restless for changes, than
tranquil and satisfied with existing institutions. Besides ;
the large states will always be able, by their power
over the supplies, to defeat any unreasonable exer-
tions of this prerogative by the smaller states.
§ 700. This reasoning, which theoretically seems
entitled to great weight, has, in the progress of the
government, been fully realized. It has not only
been demonstrated, that the senate, in its actual or-
1 The Federalist, No. 27.
s The Federalist, No. 62 ; Yates's Minutes, 4 Elliot's Debates, 63, 64 ;
3 Wilson's Law Lect 146, 147, 148.
3 The Federalist, No. 62; 1 Kent's Comm, Lect 11, p. 212, 2ia
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1^ CONSTITUTIOir OF THS U. STATES. [bOOK Ul.
ganizatioD, is well adopted to the exigencies of the
nation ; but that it is a most important and valuable
part of the system, and the real balance-wheel, which
adjusts, and regulates its movements.* The other
auxiliary provisions in the same clause, as to the mode
of appointment and duration of oflSce, will be found
to conduce very largely to the same beneficial end.^
^701. Secondly ; the mode of appointment of
the senators. They are to be chosen by the legislature
of each state. Three schemes presented themselves,
as to the mode of appointment ; one was by the legis-
lature of each state ; another was by the people there-
of; and a third was by the other branch of the nationd
legislature, either directly, or out of a select nomination.
The last scheme was proposed in the convention, in
what was called the Virginia scheme, one of the res-
olutions, declaring, ^^ that the members of the second
branch (the senate) ought to be elected by those of
the first (the house of representatives) out of a prefer
number nominated by the individual legislatures '^ (of
the states.) It met, however, with no decided support,
and was negatived, no state voting in its favour, nine
states voting against it, and one being divided.* The
second scheme, of an election by the people in districts,
or otherwise, seems to have met with as little favour.^
The first scheme, that of an election by the legislature,
finally prevailed by an mianimous vote.^
1 2 Wilson's Law Lect 148.
« The Federalist, No. 62.
3 See Mr. Randolph's fifth Resolution, Joum. of Convention, 67, 86 ;
Yates's Minutes, 4 Elliot's Debates, 58, 59.
< Journ. of Convention, 105, 106, 130 ; Yates's Minutes, 4 Elliot's
Debates, 58, 59, 63, 64, 99 to lOa
5 Journ. of Convention, 105, 106, 147, 207, 217, 238 ; Yates's Minutes,
4 Elliot's Debates, 63, 64.
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CH. X.] THE SE]7ATfi. 183
§ 702 The reasoning, by which this mode of ap-*
pointment was supported, does not appear at large in
any contemporary debates. But it may be gathered
from the imperfect lights left us, that the main grounds
were, that it would immediately connect the state gov-
ernments with the national government, and thus har-
monize the whole into one universal system ; that it
would mtroduce a powerful check upon rash legislation,
in a manner not unlike that created by the different
organizations of the house of commons, and the house
of lords in Great Britain ; and that it would increase
public confidence by securing the national government
from undue encroachments on the powers of the states.*
The Federalist notices the subject in the following
brief and summary manner, which at once establishes
the general consent to the arrangement, and the few
objections, to which it was supposed to be obnoxious.
**It is unnecessary to dilate on the appointment of
senators by the state legislatures. Among the various
modes, which might have been devised for constituting
this branch of the government, that which has been
proposed by the convention is probably the most con-
genial with the public opinion. It is recommended by
the double advantage of favouring a select appointment,
and of giving to the state governments such an agen-
cy in the formation of the federal government, as must
secure the authority of the former, and may form a
convenient link between the two systems.'* * This is
very subdued praise ; and indicates more doubts, than
experience has, as yet, justified.'
1 Yates's Minutes, 4 Elliot's Debates, 62, 63, 64 ; 3 Elliot's Debates, 49.
» The Federatist, No. 62, 27 ; 1 Kent's Comm, Lect 11, p. ?1 1.
3 See also The Federalist, No, 27.
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184 COKSTITUTIOir OF THE U. STATES. [BOOK III.
^ 703. The constitution has not provided for the
manner, in which the choice shall be made by the
state legislatures, whether by a joint, or by a concur-
rent vote ; the latter is, where both branches form one
assembly, and give a united vote numerically ; the
fonner is, where each branch gives a separate and inde-
pendent vote.* As each of the state legislatures now
consists of two branches, this is a very important prac-
tical question. (Jenerally, but not universally, die
choice of senators is made by a concurrent vote.*
Another question might be suggested, whether the ex-
ecutive constitutes a part of the legislature for such a
purpose, in cases where the state constitution gives
him a qualified negative upon the laws. But this has
been silentiy and universally settied against the execu-
tive participation in the appointment
^ 704. Thirdly ; the number of senators. Each
state is entitied to two senators. It is obvious, that to
ensure competent knowledge and ability to discharge
all the functions entrusted to the senate, (of which
more will be said hereafter,) it is indispensable, that it
should consiist of a number sufficientiy large to ensure
a sufficient variety of talents, experience, and practical
skill, for the discharge of all their duties. The legis-
lative power alone, for its enlightened and prudent ex-
ercise, requh-es (as has been already shown) no small
share of patriotism, and knowledge, and ability. In
proportion to the extent and variety of the labours erf
1 Rawle on Conat, 37 ; 1 Kent's Comm. Lect 11, p. 211, 212.
> 1 Kent's Comm. Lect 1 1, p. 21 1, 212. - Mr. Chancellor Kent says, in bis
Commentaries,* that in New- York the senators are elected by a joint
vote, if the two houses do not separately concur. But bis own opinion is,
that the true construction of the constitution upon principle is, that it
should be by a concurrent vote.
* 1 Kent*! Coaua. L«oi. 11, p. 319.
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legislation, there should be members, who should share
them, in order, that there may be a punctual and per-
fect performance of them. If the number be very
small, there is danger, that some of the proper duties
will be overlooked, or neglected, or imperfectly attend-
ed to. No human genius, or industry, is adequate to all
the vast concerns of government, if it be not aided by
the power and skill of numbers. The senate ought,
therefore, on this account alone, to be somewhat
numerous, though it need not, and indeed ought not, for
other reasons, to be as numerous, as the house«
Besides ; numbers are important to give to the body
a sufficient firmness to resist the influence, which the
popular branch will ever be solicitous to exert over
them. A very small body is more easy to be over-
awed, and mtimidated, and controlled by external influi-
ences, than one of a reasonable size, embracing weight
of character, and dignity of talents. Numbers alone,
in many cases, confer power ; and what is of not less
importance, they present more resistance to corruption
and intrigue. A body of five may be bribed, or over-
borne, when a body of fifty would be an irresistible
barrier to usurpation.
^ 705. In addition to this consideration, it is desu*a-
ble, that a state should not be wholly unrepresented in
the national councils by mere accident, or by the tem-
porary absence of its representative. If there be but
a single representative, sickness or casualty may de-'
prive the state of its vote on the most important occa-
sions. It was on this account, (as well as others,)
that the confederation entided each state to send not
less than twoj nor more than seven delegates. In crit-
ical cases, too, it might be of great importance to have
an opportunity of consultmg with a colleague or col-
voL. II. 24
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186 COKSTITUTION OF THE IT. STATES. [BOOK III.
leagues, having a common interest and feeling for the
state. And if it be not always in the strictest sense
true, that in the multitude of counsel there is safety ;
there is a sufficient foundation in the infirmity of hu-
man nature to make it desirable to gain the advantage
of the wisdom, and information, and reflection of other
independent minds, not labouring under the suspicion
of any unfavourable bias. These reasons may be pre-
sumed to have had their appropriate weight in the
deliberations of the convention. If more than one
representative of a state was to be admitted into the
senate, the least practicable ascending number was
that adopted. At that time a single representative of
each state would have made the body too small for all
the purposes of its institution, and all the objects be-
fore explained. It would have been composed but of
thirteen ; and supposing no absences, which could not
ordinarily be calculated upon, seven would constitute
a majority to decide all the measures. Twenty-six
was not, at that period, too large a number for dignity,
independence, wisdom, experience, and efficiency.
And, at the present moment, when the states have
grown to twenty -four, it is found, that forty-eight is a
number quite small enough to perform the great nation-
al functions confided to it, and to embody the requisite
skill and ability to meet the increased exigencies, and
multiplied duties of the office.* There is probably no
legislative body on earth, whose duties are more vari-
ous, and interesting, and important to the public wel-
i Mr. Tucker, (the learaed Commentator on Blackstone,) in 1803,
said : " The whole number of senators is at present limited to thirty-
two. It is not probable, that it will ever exceed fifty." * How strange-
ly haa oar Aational growth already outstripped all human calculation !
* 1 Tuck. BlMk. Cmmn. App. 98S.
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CH. X.] THE SENATE. 187
fare ; and none, which calls for higher talents, and more
comprehensive attainments, and more untiring industry,
and integrity.
§ 706. In the convention there was a considerable
diversity of opinion, as to the number, of which the
senate should consist, and the apportionment of the
number among the states. When the principle of an
equality of representation was decided, the only ques-
tion seems to have been, whether each state should
have three, or two members. Three was rejected by
a vote of nine states against one ; and two inserted by
a vote of nine states against one.^ It does not appear,
that any proposition was ever entertained for a less
number than two ; and the silence of all public discus-
sion on this subject seems to indicate, that the public
opinion decidedly adopted the lowest number under
the confederation to be the proper number, if an equal-
ity of representation was to be admitted into the sen-
ate. Whatever may be the future increase of states in
the Union, it is scarcely probable, that the number will
ever exceed that, which will fit the senate for the best
performance of all its exalted functions. The British
house of lords, at this moment, probably exceeds any
number, which will ever belong to the American senate ;
and yet, notwithstanding the exaggerated declamation
of a few ardent minds, the sober sense of the nation
has never felt, that its number was either a burthen, or
m mfirmity mherent in the constitution.*
§ 707. Fourthly ; the term of service of the sena-
tors. It is for six years ; although, as will be present-
1 Journal of Convention, 2dd July, 189. See also Id. 156, 162, 175,
178, 180, 198.
s See Uie Remarks quoted in 1 Tucker's Black. Comm. App. 223 ;
2 Wilson's Law Lect 150. In 1803 the house of lords was said to be
composed of about 220 ; it now probably exceeds 350.
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188 coKSTrriTTioir or the v. states, [book ni.
]y seen, another element in the composition of thtt
body is, that one third of it is changed every two years.
What would be the most proper period of office tor
senators, was an inquiry, admitting of a still wider range
of argument and opinion, than what would be the most
proper for the members of the house of representatives.
The subject was confessedly one full of intricacy, and
doubt, upon which the wisest statesmen might well en-
.tertain very different views, and the best patriots might
well ask for more information, without, in the slightest
degree, bringing into question their integrity, their love
(rf liberty, or their devotion to a republican government.
If, in the present day, the progress of public opinion, and
the lights of experience, furnish us with materials for a
decided judgment, we ought to remember, that the
question was then free to debate, and the fit conclusion
was not easily to be seen, or justly to be measured.
The problem to be solved by the great men of that
day was, what organization of the legislative power, in
It republican government, is best adapted to give per-
manency to the Union, and security to public liberty.
In the convention, a great diversity of judgment was
apparent among those, whose purity and patriotism were
above all suspicion, and whose talents and public ser-^
vices were equally unquestionable* Various proposi*-
tions were entertamed ; that the period of service of
senators should be during good behaviour ; for nine
years ; for seven years ; for six years j for five years ;
for four years ; for three years.^ Ail these propositions
successively failed, except that for seven years, which
was eventually abandoned for six years with the addi-
i Journal of ConveBtion« 118, 19\^ 147, 148 ; Yates's Bfiaatea, 4 El-
liot's Debates, 70, 71, 108, 104, 105, 106.
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CH. XJ] THE •£KATK. 189
^iial limitation^ that one third should ^ out bien-
niaUy.^
^ 708. No inconsiderable array of objections was
brought to bear against this prolonged term of service
of the senators beyond that fixed for the members of
the house of representatives, both in the convention,
and before the people, when the constitution was under
their advisement.^ Perhaps some of those objections
still linger in the minds of many, who entertain a gen^
eral jealousy of the powers of the Union ; and who
^Lsily persuade themselves on that account, that power
should frequently change hands in order to prevent
corruption and tyranny. The perpetuity of a body (it
has been said) is favourable to every stride it may be
1 Journal of Convention, 67, 7% 118, 130, 147, 148, 149, 307, 217, 338,
353,373; Yates's Minutes, 4 Elliot's Debates, 70, 71, JO:), 104, 105,
106. — Montesquieu seems to have been decidedly of opinion, that a
senate ought to be chosen for life, as was the custom at Rome, at Spar-
ta, and even at Athens.* It is well known, that this was Gen. Hamil-
ton's opinion, or rather his proposition was, that the senators should h%
chosen to serve during good behaviour. (Journ. of Convention, p. 130 ;
North American Review, Oct 1827, p 266.) It appears to have been
that of Mr. Jay. (North American Review, Oct J627, p. 36a) Mr.
Madison's original opinion seems to have been, to have a senate chosen
for a longer term, than the house of representatives.! But in the con-
vention, H is said, that he was favourably inclined to Mr. Hamilton'^
pkiLt In a question of so much difficulty and delicacy, as the due for-
mation of a government, it is not at all surprising, that such opinions
should have been held by them, and many others of the purest and most
enlightened patriots. They wished durability and success to a republican
government, and were, therefore, urgent to secure it against the imbe-
cility resulting from what they deemed too frequent changes in the ad-
ministration of its powers. To hold such opinions was not then deemed
a just matter of tisproach, though from the practical operations of the
constitution they may now be deemed unsound.
3 2 American Museum, 547.
"* HontMqaien*! Spirit of Lawi, B. 5. eh. 7.
t North American Reriew, Oct. 18t9f7, p. SMS.
I 9 Pitkin*! Bitt. 959, note.
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190 CONSTITUTION OF THE U. STATES. [bOOK III.
disposed to make towards extending its own power and
influence in the government. Such a tendency is to be
discovered in all bodies, however constituted, and to
which no effectual check can be opposed, but frequent
dissolutions and elections.* The truth of this remark may
be admitted ; but there are many circumstances, which
may justly vary its force and application. While, on the
one hand, perpetuity in a body may be objectionable,
on the other hand, continual fluctuations may be no less
so, with reference to its duties and functions, its powers,
and its efficiency. There are dangers arising from too
great frequency in elections, as well as from too small
The path of true wisdom is probably best attained by a
moderation, which avoids either extreme. It may be
said of too much jealousy, and of too much confidence,
that, when either is too freely admitted into public
councils, it betrays like treason.
§ 709. It seems paradoxical to assert, (as has been
already intimated,) but it is theoretically, as well as prac-
tically true, that a deep-felt responsibility is incompati-
ble with great frequency of elections.* Men can feel
litde interest in power, which slips away almost as soon,
as it is grasped ; and in measures, which they can
scarcely do more than begin, without hopmg to perfect
Few measures hare an immediate and sensible opera-
tion, exactly according to their wisdom or policy. For
the most part, they are dependent upon other meas-
ures, or upon time, and gradual intermixtures with the
business of life, and the general institutions of society.'
The first superficial view may shock popular prejudices,
or errors ; while the ultimate results may be as admh^-
1 Tucker's &ack. Corom. App. 196.
s See ante, § 567, &c. on the same point
9 The Federaliflt, No. 63.
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r
/
CH. X.] THE SEITATE. 191
ble and excellent, as they are profound and distant.
Who can take much interest in weaving a single thread
into a measure, which becomes an evanescent quantity
in the main fabric, whose texture requires constant skill,
and many adaptations from the same hand, before its
perfection can be secured, or even be prophesied 1
§ 710. The objections to the senatorial terra of office
all resolve themselves into a single argument, however
varied in its forms, or illustrations. That argument is,
that political power is liable to be abused ; and that the
great security for public liberty consists in bringing
home responsibility, and dependence in those, who are
entrusted with office ; and these are best attained by
ehort periods of office, and frequent expressions of pub-
lic opinion in the choice of officers. If the argument is
admitted in its most ample scope, it still leaves the
question open to much discussion, what is the proper
period of office, and how frequent the elections should
be. This question must, in its nature, be complicated ;
and may admit, if it does not absolutely require, different
answers, as applicable to different functionaries. Without
wandering into ingenious speculations upon the topic in
its most general form, our object will be to present the
reasons, which have been, or may be relied on, to estab-
lish the sound policy and wisdom of the duration of
office of the senators as fixed by the constitution. In so
doing, it will become necessary to glance at some sug-
gestions, which have already occurred in considering
the organization of the other branch of the legislature.
It may be proper, however, to premise, that the whole
reasoning applies to a moderate duration only in office ;
and that it assumes, as its basis, the absolute necessity
of short limitations of office, as constituting indispensa-
ble checks to power m all republican governments. It
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192 CONSTITUTION OF THS U. STATES. [BOOK III*
would almost be useless to descant upon such a basis,
because it is universally admitted in the United States
as a fundamental principle of all their constitutions of
government
^ 711. In the first place, then, all the reasons, which
apply to the duration of the legislative office generally,
founded upon the advantages of various knowledge, and
experience in the principles and duties of legislation,
may be urged with increased force in regard to the
senate. A good government implies two things ; first,
fidelity to the object of government, which is the hap-
piness of the people ; secondly, a knowledge of the
means, by which that object is to be attained. Some
governments are deficient in both these qualities ; most
are deficient in the first. Some of our wisest states*
men have not scrupled to assert, that m the American
governments too litde attention has been paid to the
latter.^ It is utterly impossible for any assembly
of men, called for the most part from the pursuits of pri-
vate life, continued in appointment for a short time, and
led by no permanent motive to devote the intervals of
public occupation to the study of the nature and opera-
tions of government, to escape from the commission of
many errors in the discharge of their legislative func-
tions.* In proportion to the extent and variety of these
functions, the national interests, which they involve, and
the national duties, which they imply, ought to rise the
intellectual qualifications, and solid attainments of the
members. Even in our domestic concerns, what are
our voluminous, and even changing codes, but monu-
> The Federalist, No. 65 ; 2 Wilsonls Law Lect 14(5, 147, 14a
9 The FeHeralist, No. 62 ; 1 Elliot's Debates, 65, 66; Id. 269 to 284 ;
3 Elliot's Debates, 50, 51 ; 2 Wilsoii'i Law Lect 152 ; 1 Kent's Comm.
Lect 11, p. 212.
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CH. X«] THJi SCICATE. 198
ments of deficient wisdom, hasty resolves, and still
more hasty repeals ? What are they, but admonitions
to the people of the dangers of rash, and premature leg-
islation,^ of ignorance, that knows not its own mistakes,
or of overweening confidence, which heeds not its own
foUies?
^ 712. A well constituted senate, then, which should
interpose some restraints upon the sudden impulses of .
a more numerous branch, would, on this account, be of
great value.* But its value would be incalculably in*
creased by making its term of office such, that with
moderate industry, talents, and devotion to the public
service, its members could scarcely fail of having the
reasonable information, which would guard them against
gross errors, and the reasonable firmness, which would
enable them to resist visionary speculations, and popu-
lar excitements. If public men know, that they may
safely wait for the gradual action of a sound public
opinion, to decide upon the merit of their actions and
measures, before they can be struck down, they will
be more ready to assume responsibility, and pretermit
present popularity for future solid reputation.' If they
are designed, by the very structure of the government,
to secure the states against encroachments upon their
rights and liberties, this very permanence of office adds
new means to effectuate the object Popular opinion
may, perhaps, in its occasional extravagant sallies, at
the instance of a fawning demagogue, or a favorite chief,
incline to overleap the constitutional barriers, m order
1 The Federalist, No. 62.
9 The Federalist, No. 63 ; 1 EUiot's Debates, 359, 260, 261, 269 to
284 ; 2 Wilson's Law Lect 146, 147, 148, 152 ; 1 Kent's Comm. 212.
3 See 1 fiUiot's Debates, 263, 264, 269 to 278 ; 3 Elliof s Debates, 48
to 51,
. VOL. IL 26
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194 CONSTITUTION OF THE U. STATES. [bOOK III.
to aid their advaacement, or gratify their ambition. But
the solid judgment of a senate may stay the evil, if its
own duration of power exceeds that of the other
branches of the government, or if it combines the joint
durability of both. In point of fact, the senate has this
desirable limit. It combines the period of office of the
executive with that of the members of the house ; while
at the same time, from its own biennial changes, (as we
shall presendy see,) it is silently subjected to the de-
liberate voice of the states.
^713* In the next place, mutability in the public
councils, arising from a rapid succession of new mem-
bers, is found by experience to work, even in domestic
concerns, serious mischiefs. It is a known fact in the
history of the states, that every new election changes
nearly or quite one half of its representatives ; ^ and in
the nadonsd government changes less frequent, or less
numerous can scarcely be expected. From this change
of men, there must unavoidably arise a change of opin*
ions ; and with this change of opinions a correspondent
change of measures. Now experience demonstrates,
that a continual change, even of good measures, is in-
consistent with every rule of prudence and every pros-
pect of success.^ In all human affairs, dme is required
to consolidate the elements of the best concerted meas-
ures, and to adjust the litde interferences, which are
incident to all legislation. Perpetual changes in public
institutions not only occasion intolerable controversies,
and sacrifices of private interests ; but check the growth
of that steady industry and enterprise, which, by wise
forecast, lay up the means of future prosperity. Be-
sides ; the instability of public councils gives an unrea-
1 The Federalist, No. 62.
s The Federalist, No. 63 ; 1 Kent's Comm. 213, 2ia
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CH.X.] THE SENATE. 195
sonable advantage to the sagacious, the ctiniung, and
the monied capitalists. Every new regulation concern-
ing commerce, or revenue, or manufactures, or agricul-
ture, or in^ any manner affecting the relative value of
the different species of property, presents a new har- '
vest to those, who watch the change, and can trace the
consequences ; a harvest, which is torn from the hand of
the honest labourer, or the confiding artban, to enrich
those, who coolly look on to reap profit, where they
have sown nothing.^ In short, such a state of things
generates the worst passions of selfishness, and the
worst spirit of gaming. However paradoxical it may
seem, it is nevertheless true, that in affairs of govern-
ment, the best measures, to be safe, must be slowly
mtroduced ; and the wisest councils are those, which j
proceed by sjeps, and reach, circuitously, their conclu-
sion. It is, then, important in this general view, that
all the public functionaries should not terminate their
offices at the same period. The gradual infusion of
new elements, which may mingle with the old, secures
a gradual renovation, and a permanent union of the
whole.
^714 But the ill effects of a mutable government
are still more strongly felt in the mtercourse with for-
eign nations. It forfeits the respect and confidence of
foreign nations, and all the advantages connected with
national character.* It not only lays its measures open
to the silent operations of foreign intrigue and man-
agement; but it subjects its whole policy to be
counteracted by the wiser and more stable policy of its
foreign rivals and adversaries. One nation is to an-
other, what one individual is to another, with this mel-
1 The FederaliBt, No. 62.
9 The Federalist, No. 62 ; 1 Elliot's Debates, 268, 269.
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196 CONSTITUTION OF THE V. STATES. [BOOK III.
ancholj distinction perhaps, that the former, with fewer
benevolent emotions than the latter, are under fewer
restraints also from taking undue advantages of the
indiscretions of each other.^ If a nation is perpetually
fluctuating in its measures, as to the protection of agri-
culture, commerce, and manufactures, it exposes all its
infirmities of purpose to foreign nations ; and the latter
with a systematical sagacity will sap all the foundations
of its prosperity. Prom this cause, under the confede-
ration, America suffered the most serious evils. ^^ She
finds," said the Federalist,* with unusual boldness and
freedom, " that she is held in no respect by her friends ;
that she is the derision of her enemies ; and that she
is a prey to every nation, which has an interest in
speculating on her fluctuating councils, and embarrassed
adfairs."
^ 716. Further; foreign governments can never
safely enter into any permanent arrangements with
one, whose councils and government are perpetually
fluctuating. It was not unreasonable, therefore, for
them to object to the continental congress, that they
could not guaranty the fulfihnent of any treaty ; and
therefore it was useless to negotiate any. To secure
the respect of foreign nations, there must be power to
fulfil engagements ; confidence to sustain them ; and
durability to ensure their execution on the part of the
government. National character in cases of this sort is
inestimable. It is not sufiicient, that there should be
a sense of justice, and disposition to act right ; but
there must be an enlightened permanency in the policy
1 The Federalist, No. 62 ; 1 Elljot's Debates, 269, 270 to 273 ; 1 Kent
Comm.212,21d.
3 The Federalist, No. 62.
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CH. X.] THE SENATE. 197
of the govemment.^ Caprice 18 just as mischievous, as
folly, and corruption scarcely worse, than perpetual in-
decision and fluctuation. In this view, independent of
its legislative functions, the participation of the senate
in the functions of the executive, in q>pointing ambas-
sadors, and in forming treaties with foreign nations,
gives additional weight to the reasoning in favour of its
prolonged term of service. A more full survey of its
other functions will make that reasonmg absolutely
irresistible, if the object is, that they should be per-
f(H*med with independence, with judgment, and with
scrupulous integrity and dignity.
^716. In answer to all reasoning of this sort, it has
been strenuously urged, that a senate, constituted, not
immediately by the people, for six years, may gradually
acquire a dangerous pre-eminence in the government,
and eventually transform itself mto an aristocracy.*
Certainly, such a case is possible ; but it is scarcely
within the range of probability, while the people, or the
government, are worthy of protection or confidence.
Liberty may be endangered by the abuses of Hberty,
as well as by the abuses of power. There are quite
as numerous instances of the former, as of the latter.'
Yet, who would reason, that there should be no liberty,
because it had been, or it might be, abused ? Tyranny
itself would nof desire a more cogent argument, than
that the danger of abuse was a ground for the denial of
a right.
^717. But the irresistible reply to all such reason-
ing is, that before such a revolution can be eflTected, the
1 See 1 ElUot»8 Debates, 269, 972, 273, 274
9 See 2 Amer. Museum, 547.
3 The Federalist, No. 63; 1 Elliot's Debates, 269, 273.
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196 coirsTiTUTioir of the v. states, [book hi.
senate must, in the first place, corrupt itself; it must
next corrupt the state legislatures ; it must then cor-
rupt the house of representatives ; and, lastly, it must
corrupt the people at large. Unless all these things
are done, and continued, the usurpation of the senate
would be as vain, as it would be transient. The peri-
odical change of its members would otherwise regene-
rate the whole body. And if such universal corruption
should prevail, it is quite idle to talk of usurpation and
aristocracy ; for the government would then be exactly,
what the people would choose it to be. It would rep-
resent exactly, what they would deem fit It would
perpetuate power in the very form, which they would
advise. No form of government ever proposed to con-
trive a method, by which the will of the people should
be at once represented, and defeated ; by which it
should choose to be enslaved, and at the same time, by
which it should be protected in its fi-eedom. Private
and public virtue is the foundation of republics ; and it
is foUy, if it is not madness, to expect, that rulers vdll
not buy, what the people are eager to sell. The people
may guard themselves against the oppressions of their
governors ; but who shall guard them against their own
oppression of themselves ?
§ 718. But experience is, after all, the best test upon
all subjects of this sort Time, whiqh dissolves the
fi^ fabrics of men's opinions, serves but to confirm the
judgments of nature. What are the lessons, which the
history of our own and other mstitutions teach us ? In
Great-Britam, the house of lords is hereditary ; and
yet it has never hitherto been able successfully to assail
the public liberties ; and it has not unfi^quently pre-
served, or enforced them. The house of commons is
now chosen for seven years. Is it now less an organ
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CH. X.] THE SEITATE. 199
of the popular opinion, and less jealous of the public
rights, than it was during annual, or triennial parlia-
ments? In Virginia, the house of delegates before
the revolution, was chosen for seven years ; and m some
of the other colonies for three years.* Were they then
subservient to the crown, or faithless to the people 1
In the present constitutions of the states of America,
there is a great diversity in the terms of oflSce, as well
as the qualifications, of the state senates. In New- York,
Virginia, Pennsylvania, and Kentucky the senate is
chosen for four years;* in Delaware, Mississippi, and
Alabama, for three years ; in South-Carolina, Tennes-
see, Ohio, Missouri, and Louisiana, biennially ; in Ma-
ryland, for five years ; in the other states annually.'
These diversities are as striking in the constitutions,
which were framed as long ago, as the times of the
revolution, as in those, which are the growth, as it were,
of yesterday. No one, with any show of reason or fact,
can pretend, that the liberties of the people have not
been quite as safe, and the legislation quite as enlight-
ened and pure in those states, where the senate is cho-
sen for a long, as for a short period.
§ 719. If there were any thing in the nature of the
objections, which have been under consideration, or
in general theory to warrant any conclusion, it would
be, that the circumstances of the states being nearly
equal, apd the objects of legislation the same, the
same duration of oflice ought to be applied to all.
Yet this diversity has existed without any assignable
inconvenience in its practical results. It is manifest,
1 1 Elliot's Debates, 272.
» The Federalist, No. 39.
3 Dr. Lieber's Encycl. Americana, art. CorutUtUions of the States ;
The Federalist, No. 39.
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200 constitution; of the u. states, [book hi.
then, that the diflTerent manners, habits, institutions, and
other circumstances of a society, may admit, if they do
not require, many different modifications of its legislative
department, without danger to liberty on the one hand,
or gross imbecility on the other. There are many
guards and checks, which are silently in operation, to
fortify the benefits, or to retard the mischiefs of an im-
perfect system. In the choice of organizations, it may
be affirmed, that that is on the whole best, which
secures in practice the most zeal, experience, J^kill,
and fidelity in the discharge of the legislative fimc-
tions. The example of Maryland is perhaps more
striking and instructive, than any one, which has been
brought under review ; for it is more at variance with
all the objections raised agamst the national senate.
In Maryland, the senate is not only chosen for five
years ; but it possesses the exclusive right to fill all
vacancies in its own body, and has no rotation during
the term.* What a fruitful source might not this be of
theoretical objections, and colourable alarms, for the
safety of the public liberties? Yet, Maryland con-
tinues to enjoy all the blessings of good government,
and rational fi-eedom, without molestation, and without
dread. If examples are sought from antiquity, the
illustrations are not less striking. In Sparta, the ephori,
the annual representadves of the people, were found an
over-match for a senate for life ; continually gaining
authority ; and finally drawing all power into their own
hands. The tribunes of Rome, who were the repre-
sentatives of the people, prevailed, in almost every con-
test, with the senate for life ; and in the end gained a
complete triumph over it, notwithstanding unanimity
. 1 The Federalist, No. 63.
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CH. X.] THE SENATJB. 201
among the tribunes was indispensable. This &ct
prores the irresistible force possessed by that branch
of the government, which represents the popular wilL^
§ 720. Considering, then, the various functions of
the senate, the qualifications of skill, experience, and
information, which are required to discharge them, and
the importance of interposing, not a nominal, but a real
check, in order to guard the states from usurpations
upon their authority, and the people from becoming the
victims of violent paroxysms in legislation ; the term of
six years would seem to hit the just medium between
a duration of office, which would too much resbt, and
a like duration, which would too much invite those
changes of policy, foreign and domestic, which the
best interests of the country may require to be delib-
erately weighed, and gradually intix>duced. If the
state governments are found tranquil, and prosperous,
aofl safe, with a senate of two, three, four, and five
years' duration, it v^ould seem'impossible for the Union
to be in danger from a term of service of six years.*
^721. But, as if to make assurance doubly sure,;
and take a bond of fate, in order to quiet the last Ung-
ering scruples of jealousy, the succeeding clause of4the
constitution has interposed an intermediate change in
the elements oi the body, which would seem to make it
absolutely above exception, tf reason, and not fear, is
to prevail ; and if government is to be a reality, and not
a vision.
§722. It declares, "Immediately after they (the
" senators) shall be assembled, in consequence of the •
"first election, they shall be divided, as eqtialfy as may
"be, into three classes. The seats of the senators of
1 The Federalist, No. 63 ; Id^ No. 34.
> 1 ElUofB Deb. 64 to 06 ; Id. 91 ; 1 KentVConm). Lect 11, p. 313» 2ia
VOL. II. 26
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202 CONSTITUTION OF THE V. STATES. [BOOK III.
^^ the first class shall be vacated at the expiration of
^ the second year ; of the second class, at the expira-
" tion of the fourth year ; and of the third class, at the
^ expiration of the sixth year, so that one third may be
^ chosen every second year.'' A proposition was made
in the convention, that the senators should be chosen
for nine years, one third to go out biennially, and was
lost, three states voting in the affirmative, and eight in
the negative ; and then the present limitation was
adopted by a vote of seven states against four.^ Here,
then, is a clause, which, without impairing the efficien*
cy o( the senate for the discharge of its high functions,,
gradually changes its members, and introduces a bien-
nial appeal to the states, which must for ever prohibit
any permanent combination for sinister purposes. No
person would probably propose a less duration of office
for the senate, than double the period of the house*
In effect, this provision changes the composition of two
thirds of that body within that period.*
^ 723. And here, again, it is proper to remark, that
experience has established the fact beyond all contro-
versy, that the term of the senate is not too long, either
for its own security, or that of the states. The rea-
soning of those exalted minds, which framed the con-
stitution, has been fully realized in practice. While
the house of representatives has gone on increasing, and
deepening its influence with the people with an irre-
sistible power, the senate has, at all times, felt the im-
i Journ. of Convention, 26th June, 1787, p. 149 ; Yates's Minutes,
4 Elliot's Debates, 108 to 106.
a 1 Elliot's Deb. 64 to 66 ; Id. 91, 92 ; 1 Kent's Comm. Lect 11, p. 213,
214. — A power to recall the senators was proposed as an amendment in
some of the state conventions ; but it does not seem to have obtained
genera] favour.* Many potent reasons might be urged against it.
* lElUot'fDtbatai,957,95eto9M,965to87Si3]SUMi>fD«bfttei,a03.
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CH. X.] TU£ SENATE. • 203
pulses of the popular wiU, and has never been found to
resist any solid improvements. Let it be added^ that
it has given a dignity, a solidity, and an enlightened
spirit to the operations of the government, which have
maintamed respect abroad, and confidence at hcmie.
§ 724. At Uie first session of congress under the
constitution, the division of the senators into three
classes was made in the following manner. The sena-
tors present were divided into three classes by name,
the first consisting of six persons, the second of seven,
and the third of six. Three papers of an equal size,
numbered one, two, and three, were, by the secretary,
rolled up, and put into a box, and drawn by a commit-
tee of three persons, chosen for the purpose in behalf of
the respective classes, in which each of them was
placed ; and the classes were to vacate their seats in
the senate, according to the order of the numbers
drawn for them, beginning with number one. It was
also provided, that when senators should take their
seats fixim states, which had not then appointed sena-
tors, they should be placed by lot in the foregcMng
classes, but in such a manner, as should keep the
classes as nearly equal, as possible.^ In arranging the
original classes, care was taken, that both senators
fi*om the same state should not be in the same class, so
that there never should be a vacancy, at the same time,
of the seats of both senators.
^ 726. As vacancies might occur in the senate dur-
ing the recess of the state legislature, it became mdis-
pensable to provide for that exigency. Accordingly the
same clause proceeds to declare: ^ And if vacancies
** happen by resignation, or otherwise, during the recess
i Journals of the Senate, ISth May, 1789, p. 25, 26, (edit 1820.)
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204 CONSTITUTION OF THE U. STATES. [BOOK III.
^ of the legislature of a^y state, the executive thereof
'^may make temporary appomtments until the next
*^ meeting of the legislature, which shall then fill such
^vacancies.'' It does not appear, that any strong objec-
tion was urged, in the convention, against this proposi-
tion, although it w)as not adopted without some opposi-
tion.^ There seem to have been three courses presented
for the consideration of the convention ; either to leave
the vacancies unfilled until the meeting of the state
legislature ; or to allow the state legislatures to provide
at their pleasure, prospectively for the occurrence ; or
to confide a temporary appomtment to some select
state functionary or body. The latter was deemed
the most satisfactory and convenient course. Con-
fidence might justly be reposed in the state executive,
W representing at once the interests and wishes of the
state, and enjoying all the proper measures of knowl-
edge and responsibility, to ensure a judicious ap-
pointment^
§ 726. Fifdily ; the qualifications of senators. The
constitution declares, that ^^No person shall be a sen-
.1 Journ. of Convention, 9th Aug. 937, 238.
^ In the case of Mr. Lanman^ u senator from Connecticut, a question
occurred, whether the state executive could make an appointment in
the leceis of the state legislature in anticipation of the expiration of
the term of oQce of an existing senator. It was decided by the senate,
that he could not make such an appointment The facts were, that
Mr. Lanman's term of service, as senator, expired on the third of March,
1825. The president had convoked the senate to meet on the fouith of
March. The governor of Connecticut in the recess of the legislature,
(whose session would be in May,) on the ninth of the preceding Feb-
ruary appointed Mr. Lanman, as senator, to sit in the senate after the
third of March. The senate, by a vote of 23 to 18, decided, that the
appointment could not be constitutionally made, until after the vacancy
had actuaUy occurred. See Gordon's Digest of the Laws of the United
Spates, 1827, Appendix* Note ), B.
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CH. XO 'ITHE 8£irAT£« 206
^ ator, who shall not have attained the age of thirty
^ years, and been nine years a citizen of the United
^ States, and who shall not, when elected, be an inhab-
^itant of that state, for which he shall be chosen."
As the nature of the duties of a senator require more
experience, knowledge, and stability of character, than
those of a representative, the qualification in point of
age is raised. A person may be a representative at
twenty -five ; but he cannot be a senator until thirty.
A similar qualification of age was required of the mem-
» bers 6( the Roman senate.^ It would have been a
Bomewhat singular anomaly in the history of fi-ee gov-
ernments, to have found persons actually exercising
the highest fimctions of government, who, in some en-
lightened and polished countries, would not be deem-
ed to have arrived at an age sufficiently mature to
be entitled to all the private and municipal privi-
leges of manhood. In Rome persons were not deem-
ed at full age until twenty-five ; and that continues
to be the rule in France, and Holland, and other
civil law countries ; and in France, by the old law, in
regard to marriage full age was not attained until
thirty.* It has since been varied, and the term dimm-
ished.'
^ 727. The age of senators was fixed in the consti-
tution at first by a vote of seven states against four ;
and finally, by an unanimous vote.^ Perhaps no one, in
our day, is disposed to question the propriety of this
limitation ; and it is, therefore, useless to discuss a
point, which is so purely speculative. If coimsels are
to be wise, the ardour, and impetuosity, and confi-
1 1 Kent's Comm. Lect 11, p. 214. » 1 Black. Coium. 469; 464.
9 Code Civil, art 388.
4 Journ. of Conyention, 118, 147-
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206 CONSTITUTIOir OF THE V. STATES. [BOOK III.
dence of youth must be chastised by the sober lessons
of experience ; and if knowledge, and solid judgment,
and tried integrity, are to be deemed indispensable
qualifications for senatorial service, it would be rash-
ness to affirm, that thirty years is too long a period for
a due maturity and probation.^
^ 728. The next qualification is citizenship. The
propriety of some limitation upon admissions to office,
after naturalization, cannot well be doubted. The
senate is to participate largely in transactions with for-
eign governments ; and it seems indispensable, that
time should have elapsed sufficient to wean a senator
from all prejudices, resentments, and partialities, in
relation to the land of his nativity, before he should be
entrusted with such high and delicate fimctions.^
Besides ; it can scarcely be presumed, that any for-
eigner can have acquired a thorough knowledge of the
institutions and interests of a country, until he has
been permanently incorporated mto its society, and has
acquired by the habits and intercourse of life the feel-
ings and the duties of a citizen. And if he has acquired
the requisite knowledge, he can scarcely feel that
devoted attachment to them, which constitutes the
great security for fidelity and promptitude in the dis-
charge of official duties. If eminent exceptions could
be stated, they would furnish no safe rule ; and should
rather teach us to fear our being misled by brilliancy
of talent, or disinterested patriotism, into a confidence,
which might betray, or an acquiescence, which might
weaken, tiiat jealousy of foreign influence, which is one
of the main supports of republics. In the convention
1 Rawle on the Constitution, 37 ; 1 Kent's Comm. Lect 11, p. 314 ;
1 Tuck. Black, dmm, App. 22a
s The Federalist, No. 62.
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CH. X.] THS SEHATE. 207
it was at first proposed, that the limitation should be
four years ; and it was finally altered by a vote of six
states against four, one being divided, which was after-
wards confirmed by a vote of eight states to three.*
This subject has been already somewhat considered in
another place ; and it may be concluded, by adopting
the language of the Federalist on the same clause.
**The term of nine years appears to be a prudent
mediocrity between a total exclusion of adopted citi-
zens, whose merit and talents may claim a share in
the public confidence, and an indiscriminate and hasty
admission of them, which might create a channel for
foreign influence in the national councils/' *
^ 729. The only other qualification is, that the sen-
ator shall, when elected, be an inhabitant of the state,
for which he is chosen. This scarcely requires any
comment ; for it is manifesdy proper, that a state
should be represented by one, who, besides an inti-
mate knowledge of all its wants and wishes, and local
pursuits, should have a personal and immediate interest
m all measures touching its sovereignty, its rights, or
its influence. The only surprise is, that provision was
not made for his ceasing to represent the state m the
senate, as soon as he should cease to be an inhabitant.
There does not seem to have been any debate in the
convention on the propriety of inserting the clause, as
it now stands.
§ 730. In concluding thb topic, it is proper to re-
mark, that no qualification whatsoever of property is
established in regard to senators, as none had been
established in regard to representatives. Merit, there-
1 Journ. of Convention,2I8, 238, 239, 248, 249.
8 The Federalist, No. G2 ; Rawle on the Constitution, 37 ; 1 Kent's
Coiiim.Lectll,p.214.
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208 coNSTiTimoir of thk u. states, [book ih.
fore, and talent have the freest access open to them into
' every department of office under the national govern-
ment Under such circumstances, if the choice of the
people is but directed by a suitable sobriety of judgment,
the senate cannot fail of being distinguished for wisdom,
for learning, for exalted patriotism, for incorruptible
integrity, and for inflexible independence.^
§731. The next clause of the third section of the first
article respects the person, who shall preside in the
senate. It declares, that "the Vice President of the
** United States shall be president of the senate ; but
" shall have no vote, unless they be equally divided ; *'
and the succeeding clause, that " the senate shall choose
" their other, officers, and also a president pro tempore,
" in the absence of the vice president, or when he shall
" exercise the office of president of the United States.**
§ 732. The original article, as first reported, author-
ized the senate to choose its own president, and other
officers ; and this was adopted in the convention.^ But
the same draft authorized the president of the senate,
in case of the removal, death, resignation,' or disability
of the president, to discharge his duties. When at a
late period of the convention it was deemed advisable,
that there should be a vice president, the propriety
of retaming him, as presidmg officer of the senate, seems
to have met with general favour, eight states voting in
the affirmative, and two only in the negative.*
^ 733. Some objections have been taken to the
appointment of the vice president to preside in the
senate. It was suggested in the state conventions,
I See the Federalist, No. 27.
* Journal of Convention, p. 218, 240.
3 Ibid, 225, 226.
4 Journal of Convention, 325, 338.
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OH. X.] THB SENATE. 209
that the oflScer was not only unnecessary, but dianger-
ous ; that it is contrary to the usual course of parliamen*
tary proceedings to have a presiding officer, who is not
a member; and that the state, from which he comes,
may thus have two votes, mstead of one.^ It has also
been coldly remarked by a learned commentator, that
"the necessity of providing for the case of a vacancy in
the office of president doubtless gave rise to the creation
of that officer ; and for want of something else for him
to do, whilst there is a president in office, he seems to
have been placed, with no very great propriety, in the
chair of the senate.^* *
^ 734. The propriety of creating the office of vice
president will be reserved for future consideration,
when, in the progress of these commentaries, the con-
stitution of the executive department comes under
review.' The reasons, why he was authorized to
preside in the senate, belong appropriately to this place.
§ 736. There is no novelty in the appomtment of a
person to preside, as speaker, who is not a constituent
member of the body, over which he is to preside. In
the house of lords in England the presiding officer is
the lord chancellor, or lord keeper of the great seal,
1 2 Elliot's Debates, «359, 361 ; 3 Elliot's Debates, 37, 3a
9 1 Tucker's Black. Comm. Appx., 224 ; Id. 199, 200. — It is a some-
what curious circumstance in the history of congress, that the exercise
of the power of the vice president in defeating a bill for the apportion-
ment of representatives in 1792, has been censured, because such a
bill seemed (if any) almost exclusively fit for the house of representa-
tives to decide upon;* and that a like bill, to which the senate
interposed a strong opposition, in 183*2, has been deemed by some of the
states so exceptionable, that this resistance has been thought worthy of
high praise. There is some danger in drawing conclusions from a single
exercise of any power against its general utility or policy.
3 See 2 Amer. Museum, 557 ; The Federalist, No. 68.
* 1 Tuck. Black. Comm. App. 199, 900, 335.
VOL. II. 27
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210 CONSTUTITIOK OF THE V. STATEsl [bOOK UU
or other person appointed by the king's commbsion ;
and if none such be so appointed, then it is said, that
the lords may elect. But it is by no rneaas necessary,
that the person appointed by the king should be a peer
of the realm or lord of parliament.^ Nor has this
appointment by the king ever been complained of, as a
grievance, nor has it operated with inconvenience or
oppression in practice. It is on the contrary deemed an
important advantage, both to the officer, and to the house
of peers, adding dignity and weight to the former, and
securing great legal ability and talent in aid of the latter. .
This consideration alone might have had some influence
in the convention. The vice president being himself
chosen by the states, might well be deemed, m point of
age, character, and dignity, worthy to preside over the
deliberations of the senate, in which the states were
all assembled and represented. His impartiality m the
discharge of its duties might be fairly presumed ; and
the employment would not only bring his character in
review before the public ; but enable him to justify the
public confidence, by performing his public functions
with independence, and firmness, and sound discretion.
A citizen, who was deemed worthy of being one of the
competitors for the presidency, could scarcely fail of
being distinguished by private virtues, by comprehen-
sive acquirements, and by eminent services. In aU
questions before the senate he might safely be appealed
to, as a fit arbiter upon an equal division, in which case
alone he is entrusted with a vote.
^ 736. But the strong motive for this appointment
was of another sort, founded upon state jealousy, and
state equality in the senate. If the speaker of the
1 1 Black. Comtn. 181 ; 3 Black. Comm. 47; 1 Tuck. Black. Comm.
App., 224.
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CH. X.] THE SENATE. 211
senate was to be chosen from its own members, the
state, upon whom the choice would fall, might possess
either more or less, than its due share of influence. If
the speaker were not allowed to vote, except where
there was an equal division, independent of his own
vote, then the state might lose its own voice;* if he
were albwed to give his vote, and also a casting vote,
then the state might, in efiect, possess a double vote.
Either alternative would of itself present a predicament
sufficiendy embarrassing. On the other hand, ii^no
casting vote were allowed in any cstse, then the inde-
cision and inconvenience might be very prejudicial to
the public interests, in case of an equality of votes.'
It might give rise to dangerous feuds, or intrigues,
and create sectional and state agitations. The smaller
states might well suppose, that their interests were less
secure, and less guarded, than they ought to be. Under
such circumstances, the vice president would seem to
be the most fit arbiter to decide, because he would be
the representative, not of one state only, but of all ; and
must be presumed to feel a lively interest in promoting
all measures for the public good. This reasoning ap-
pears to have been decisive in the convention, and sat-
isfactory to the people.' It establishes, that there was- a
manifest propriety in making the arrangement conducive
to the harmony of the states, and the dignity of the
general government. And as the senate possesses the
power to make rules for its own proceedings, there is
Uttie danger, that there can ever arise any abuse of the
jM^siding power. The danger, if any, is rather the
other way, that the presiding power will be either
silendy weakened, or openly surrendered, so as to leave
1 The Federalist, Na 68. s The Federalist, No. 6a
3 2 Elliot's Debates, 359, 360, 36! ; 3 Elliot's Debates, 37, 38, 51, 53.
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212 CONSTITUTION OF THE U. STATES. [bOOK HI.
the office litde more, than the barren honour of a place,
without influence and without action.
§ 737. A question, mvolving the authority of the vice
president, as presiding officer in the senate, has been
much discussed in consequence of a decision recendy
made by that officer. Hitherto the power of preserving
order during the deliberations of the senate in all-cases,
where the rules of the senate did not specially prescribe
another mode, had been siiendy supposed to belong to
the vice president, as an incident of office. It had
never been doubted, much less denied, from the first
organization of the senate ; and its existence had been
assumed, as an inherent quality, constitutionally delegat-
ed, subject only to such rules, as the senate should irom
time to time prescribe. In the winter session of 1826,
the vice president decided in effect, that, as president
of the senate, he had no power of preserving order, or of
calling any member to order, for words spoken in the
course of debate, upon his own authority, but only so far,
as it was given, and regulated by the rules of the senate.^
Thb was a virtual surrender of the presiding power (if
not universally, at least in that case) into the hands of the
senate; and disarmed the officereven of the powerof self-
protection from insult or abuse, unless the senate should
choose to make provision for it If, therefore, the senate
should decline to confer the power of preserving order,
the vice president might become a mere pageant and
cipher in that body. I^ mdeed, the vice president had
not this power virtute offidiy there was nothing to pre-
vent the senate from confiding it to any other officer
chosen by itself! Nay, if the power to preside had not
this incident, it was difficult to perceive, what other
1 I American Annual Register, 86, 87 ; 3 American Annual Register,
99 ; 4 Elliot'd Debates, 31 1 to 315.
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CH. X.] THE SENATE. 213
incident it had. The power to put questions, or to
declare votes,^ might just as well, upon similar reason-
ing, be denied, unless it was expressly conferred. The
power of the senate to prescribe rules could not be
deemed omnipotent. It must be construed with refer-
ence to, and ia connexion with the power to preside ; and
the latter, according to the common sense of mankind,
and of public bodies, was always understood to include
the power to keep order ; upon the clear ground, that
the grant of a power includes the authority to make it
effectual, and also of self-preservation.
^ 738. The subject at that time attracted a good
deal of discussion ; and was finally, as a practical in-
quiry, put an end to in 1828, by a rule made by the
senate, that " every question of order shall be decided
by the president without debate, subject to a{^eal to
the senate.*' ^ But still the question, as one of consti-
tutional right and duty, liable to be regulated, but not to
be destroyed by the senate, deserves, and should re-
ceive, the most profound investigation of every man
solicitous for the permanent dignity and independence
of the vice presidency.*
^ 739. The propriety of entrusting the senate with
the choice of its other officers, and also of a president
pro tempore in the absence of the vice president,
or when he exercises the office of president, seems
never to have been questioned; and indeed is so
obvious, that it is wholly unnecessary to vindicate it
Confidence between the senate and its officers, and
the power to make a suitable • choice, and to secure a
suitable responsibility for the faithful discharge of the
duties of office, are so indispensable for the public good,
^ 3 American Annual Register, 99.
< See Jefferson's Manual, § 15, 17.
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214 COirSTITUTIOW OF THE U. STATES. [bOOK III*
that the provision will command miiycrsal assent, as
soon as it is mentioned* It has grown into a general
practice for the vice president to vacate the sena-
torial chair a short time before the termination of each
session, in order to enable the senate to choose a
president pro tempore, who might already be in office,
if the vice president in the recess should be called
to the chair of state. The practice is founded in
wisdom and sound policy, as it immediately provides
for an exigency, which may well be expected to occur
at any time ; and prevents the choice from bemg
influenced by temporary excitements or intrigues,
arising from the actual existence of a vacancy. As it
is useful in peace to provide for war; so it is likewise
usefrd m times of profound tranquillity to provide (or
political agitations, which may disturb the public har-
mony.
^ 740. The next clause of the third section of the
first article respects the subject of impeachment. It is
as folbws: ^The senate shall have the sole power to
^ try all impeachments. ^ When sitting for that purpose,
**they shall be on oath or affirmation. When the presi-
**dent of the United States is tried, the chief justice
** shall preside. And no person shall be convicted with-
** out the concurrence of two thirds of the members
** present'*
^ 741. Upon the subject of impeachments something
has already been said, in treating of that branch
of the constitution, which delegates to the house of
representatives the sole power of impeachment Upon
the propriety of delegating the power it b unneces-
sary to enlarge. But the next inquiry naturally pre-
sented is, by what tribunal shall an impeachment be
tried ? It is obviously mcorrect in theory, and against
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CH. X.] TH£ SEiriTS. 216
■ /
the general principles of justice, that the same tribunal
should at once be the accusers and the judges ; that
they should first decide upon the verity of the accusa-
tion, and then try the oflTenders.* The first object in
the administration of justice is, or ought to be, to se-
cure an impartial trial This is so fundamental a
rule in all republican governments, that it can require
little reasoning to support it ; and the only surprise is,
that it could ever have been overlooked.
^ 742. The practice of impeachments seems to^^have
been originally derived into the common law from the
Germans, who, in their great councils, sometimes tried
capital accusations relating to the public. Licet cq^ud
concilium accuiare^ quoque et discrimen capitis iniendere.^
When it was adopted in England, it received material
improvements. In Germany, and also in the Grecian
and Roman republics, the people were, at the same time,
the accusers and the judges ; thus trampling down, at
the outset, the best safeguards of the rights and lives of
the citizens.^ But in England, the house of commons
is invested with the sole power of impeachment, and the
house of lords with the sole power of trial. Thus, a
tribunal of high dignity, independence, and intelligence,
and not likely to be unduly swayed by the influence of
popular opinion, is established to protect the accused,
and secure to him a favourable hearing.* Montesquieu
has deemed such a tribunal worthy of the highest
praise.^ Machiavel has ascribed the ruin of the repub-
lic of Florence to the want of a mode of providing by
1 Rawle on Const ch. 22, p. 209, 210.
« 4 Black. Comm. 260 ; Tacit de Morib. Genu. 12,
3 4 Black. Comm. 261 ; 2 Wilson's Law Lect 164, 165, 16a
4 4 Black. Comm. 261 ; but see Faley's Moral Philosophy, B. 6, ch.8;
1 Wilson's Law Lect 450, 451.
5 Montesq. Spirit of Laws, B. 11, cb. 6.
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216 CONSTITUTIOK or THE U. STATES. [bOOK HI.
impeachment against those, who offend against the
state. An American commentator has hazarded the
extraordinary remark, that, ** If the want of a proper
tribunal for the trial of impeachments can endanger the
liberties of the United States, some future Machiavel
may perhaps trace their destruction to the same
source/^ ^ The model, fix)m which the national court of
unpeadhments is borrowed, is, doubdess, that of Great
Britain ; and a simUar constitutional distribution of the
power exists in many of the state governments.*
§ 743. The great objects, to be attamed m the selec-
tion of a tribunal for the trial of impeachments, are,
impartiality, integrity, mtelligence, and independence.
If either of these is wanting, the trial must be radically
imperfecj. To ensure impartiality, the body must be
in some degree removed from popular power and pas-
sions, from the influence of sectional prejudice, and from
the more dangerous hxfluence of mere party spirit To
secure integrity, there must be a lofty sense of duty, and
a deep responsibility to future times, as well as to God.
To secure intelligence, there must be age, experience,
and high intellectual powers, as well as attainments.
To secure independence, there must be numbers, as
well as talents, and a confidence resulting at once from
permanency of place, and dignity of station, and enlight-
ened patriotism. Does the senate combine, in a suita-
ble degree, all these qualifications ? Does it combine
them more perfectly, than any other tribunal, which
could be constituted ? What other tribunal could be
entrusted with the authority ? These are questions of
the highest importance, and of the most frequent occur-
rence. They arose in the convention, and underwent
I 1 Tucker's Black. Comm. App. 348.
9 The Federalist, No. 65, 66.
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CH. X.] TH£ SENATE. 217
a full discussion there. They were again deliberately
debated in the state conventions ; and they have been
at various times since agitated by jurists and statesmen^
and political bodies. Few parts of the constitution
have been assailed vnth more vigour ; and few have
been defended with more ability. A learned commen-
tator, at a considerable distance of time after the adop-
tion' of the constitution, did not scruple to declare, that
it was a most inordinate power, and in some mstances
utterly incompatible with the other functions of the sen-
ate ; ^ and* a similar opinion has often been propagated
with an abundance of zeaL* The journal of the con-
vention bears testimony also to no inconsiderable diver-
sity of judgment on the subject in that body.
§ 744. The subject is itself full of intrinsic difficulty
in a government purely elective. The jurisdiction is
to be exercised over offences, which are committed by
public men in violation of their public trust and duties.
Those duties are, in many cases, political ; and, indeed,
in other cases, to which the power of impeachment will
probably be applied, they will respect functionaries of a
high character, where the remedy would otherwise be
wholly inadequate, and the grievance be incapable of re-
dress. Strictly speaking, then, the power partakes of a
political character, ^s it respects injuries to the society
in its political character ; and, on this account, it requires
to be guarded in its exercise against the spirit of faction,
the intolerance of party, and the sudden movements of
popular feeling. The prosecution will seldom fail to
agitate • the passions of the whole community, and to
^ 1 Tucker's Black. Coram. App. 200 ; Id, 335, 336, 387.
2 9 Amer. Museum, 549 ; 3 Amer. Museum, 71 ; The Federalist, No.
65, 66; 1 Tuck. Black. Comm. App. 337 ; Jour, of CoDventioo, Supple-
ment, p. 4!<5, 437.
VOL. II. 28
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218 CONSTITUTION OF THE U. STATES. [bOOK III.
divide it into parties, more or less friendly, or hostile
to the accused. The press, with its unsparing vigi-
lance, will arrange itself on either side, to control, and
influence public opinion ; and there will always be some
danger, that the decision will be regulated more by the
comparative strength of parties, than by the real proofs
of innocence or guilt.*
^ 745. On the other hand, the delicacy and magni-
tude of a trust, which so deeply concerns the political
existence and reputation of every man engaged in the
administration of public affairs, cannot be overlooked.*
It ought not to be a power so operative and instant,
that it may intimidate a modest and conscientious
statesman, or other functionary from accepting office ;
nor so weak and torpid, as to be capable of lulling offend-
ers into a general security and indifference. The difli-
culty of placing it rightly in a government, resting en-
tirely on the basis of periodical elections, wilf be more
strikingly perceived, when it is considered, that the
ambitious and the cunning will often make strong accu-
sations against public men the means of their own ele-
vation to office ; and thus give an impulse to the power
of impeachment, by pre-occupying the public opinion.
The convention appears to have been very strongly im-
pressed with the difficulty of constituting a suitable
tribunal ; and finally came to the result, that the senate
was the most fit depositary of this exalted trust. In so
doing, they had the example before them of several of
i&e best considered state constitutions ; and the exam-
ple, in some measure, of Great Britain. The most stren-
uous opponent cannot, therefore, allege, that it was a
rash and novel experiment ; the most unequivocal friend
I The Federalist, No. 65.
« The Federalist, No. 65 ; 2 Wilson's Law Lect 165.
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CH. X.] THE SENATE. 219
must, at the same time, admit, that it is not free from
all plausible objections.*
§ 746. It will be well, therefore, to review the
ground, and ascertain, how far the objections are well
founded ; and whether any other scheme would have
been more unexceptionable. The principal objections
were as follows : (1.) That the provision confounds the
legislative and judiciary authorities in the same body,
in violation of the well known maxim, which requires a
separation of them. (2.) That it accumulates an undue
proportion of power in the senate, which has a tenden-
cy to make it too aristocratic. (3.) That the efficiency
of the court will be impaired by the circumstances, that
the senate has an agency in appointment to office.
(4.) That its efficiency is still further impaired by its
participation in the functions of the treaty -making pow-
er.*
§ 747. The first objection, which relates to the sup-
posed necessity of an entire separation of the legisla-
tive and judicial powers, has been already discussed in
its most general form in another place. It has been
sjiiown, that the maxim does not apply to partial inter-
mixtures of these powers ; and that such an intermix-
ture is not only unobjectionable, but is, in many cases,
indispensable for the purpose of preserving the due
mdependence of the diflFerent departments of govern-
ment, and their harmony and healthy operation in the
advancement of the public interests, and the preserva-
tion of the public liberties.' The question is not so
much, whether any intermixture is allowable, as wheth-
er the intermixture of the authority to try impeach-
ments with the other functions of the senate is salutary
I The Federalist, No. 65, 66. « Id. No. 66,
3 Ante, vol. ii. § 524 to 540 ; Rawle on Constitution, ch. 22, p. 212.
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220 CONSTITUTION OF Tfii: U. STATES. [BOOK lit*
and usefiiL Now, some of these functions constitute
a sound reason for the investment of the power in this
branch. The offences, which the power of impeach-
ment is designed principally to reach, are those of a
political, or of a judicial character. They are not those,
which lie within the scope of the ordinary municipal
jurisprudence of a country. They are founded on dif-
ferent principles ; are governed by different maxims ;
are directed to different objects ; and require different
remedies from those, which ordinarily apply to crimes.*
So far as they are of a. judicial character, ic is obviously
more safe to the public to confide them to the senate,
than to a mere court of law. The senate may be pre-
sumed always to contain a number of distinguished
lawyers, and probably some persons, who have held
judicial stations. At the same time they will not have
any undue and unmediate sympathy with the accused
from that common professional, or corporation spirit,
which is apt to pervade those, who are engaged in simi-
lar pursuits and duties.
^ 748. In regard to political offences, the selection of
the senators has some positive advantages. In the first
place, they may be fairly presumed to have a more
enlarged knowledge, than persons in other situations, of
political functions, and their difficulties, and embar-
rassments; of the nature of diplomatic rights and
duties ; of the extent, lunits, and variety of executive
powers and operations ; and of the sources of involun-
tary error, and undesigned excess, as contradistinguish-
ed from those of meditated and violent disregard of duty
and right On the one hand, this very experience and
knowledge will bring them to the trial with a spirit of
candour and intelligence, and an ability to comprehend,
1 1 WUson's Law Lect 451, 453.
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CH. X.] THE SENATE. 221
and scrutinize the charges agamst the accused ; and, on
the other hand, their connection with, and dependence
on, the states, will make them feel a just regard for the
defence of the rights, and the interests of the states
and the people. And this may properly lead to anoth-
er remari£ ; that the power of impeachment is peculiarly
well fitted to be left to the final decision of a tribunsd
composed of representatives of all the states, havmg a
c(Hnmon interest to maintain the rights of all ; and yet^
beyond the reach of local and sectional prejudices.
Surely, it will not readily be admitted by the zealous
defenders of state rights and state jealousies, that the
power is not safe in the hands of all the states, to be
used for their own protection and honour.
§ 749. The next objection regards the undue accu*
mulation of power m the senate fit)m this source connect-
ed with other sources. So far as any other powers are
mcompatible with, and obstructive of, the proper exer-
cise of the power of impeachment, they will fall under
consideration under another head. But it is not easy to
perceive, what the precise nature and extent of the ob-
jection is. What is the due measure or criterion of
power to be given to the senate 1 What is the stan-
dard, which is to be assumed ? If we are to regard
dieory, no power in any department of government is
undue, which is safe and useful in its actual operations,
which is not dangerous in its form, or too wide in its
extent It is incumbent, then, on those, who press the
objection, to establish, by some sound reasoning, that
the power is not safe, but mischievous or dangerous.*
Now, the power of impeachment is not one expected
in any government to be in constant or frequent exer-
cise. It is rather intended for occasional and extraor-
1 The FederaliBt, No. 66.
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222 CONSTITUTION OF THE U. STATES. [BOOK III.
dinary cases, where a superiour power, acting for the
whole people, is put into operation to protect their rights,
and to rescue their Uberties from violation. Such a
power cannot, if its actual exercise is properly guarded,
in the hands of functionaries, responsible and wise, be
justly said to be unsafe or dangerous ; unless we are to
say, that no power, which is liable to abuse, should be,
under any circumstances, delegated. The senators can-
not be presumed in ordinary decency, not to be a body
of sufficient wisdom to be capable of executing the
power ; and their responsibility arises from the moder-
ate duration of their office, and their general stake in the
interests of the community, as well as their own sense
of duty and reputation. If, passing from theory, resort
is had to the history of other governments, there is no
reason to suppose, that the possession of the power of
trying impeachments has ever been a source of undue
aristocratical authority, or of dangerous influence. The
history of Great Britain has not established, that the
house of lords has become a dangerous depositary of
influence of any sort from its being a high court of im-
peachments. If the power of impeachment has ever
been abused, it has not trampled upon popular rights.
If it has struck down high victims, it has followed, rath-
er than led, the popular opinion. If it has been an
instrument of injustice, it has been from yielding too
much, and not too little. If it has sometimes suffered
an offender to escape, it has far more frequendy puri-
fied the fountains of justice, and brought down the
favourite of courts, and the perverter of patronage to
public humiliation and disgrace. And to bring the case
home to our own state governments, the power in our
state senates has hitherto been without danger, though
certainly not without efficiency.
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CH. X.] THE SENATE. 223
^ 750. The next objection is, that the power is not
eflScient or safe in connexion with the agency of the
senate in appointments. The argument is, that sena-
tors, who have concurred in an appointment, will be
too indulgent judges of the conduct of the men, in
whose efficient creation they have participated.^ The
same objection lies with equal force against all govern-
ments, which entrust the power of appointment to any
persons, who have a right to remove them at pleasure.
It might in such cases be urged, that the favouritism
of the appointor would always screen the misbehaviour
of the appointees. Yet no one doubts the fitness of
entrusting such a power; and confidence is reposed,
and properly reposed, in the character and responsi-
bility of those, who make the appointment.* The ob-
jection is greatly diminished in its force by the consid-
eration, that the senate has but a slight participation in
the appointments to office. The president is to nomi-
nate and appoint; and the senate are called upon
merely to confirm, or reject the nomination. They
have no right of choice ; and therefore must feel less
solicitude, as to the individual, who is appointed.^ But,
in fact, the objection is itself not well founded ; for it
will rarely occur, that the persons, who have concurred
in the appointment, will be members of the senate at
the time of the trial. As one third is, or may be,
changed every two years, the case is highly improba- *
ble ; and still more rarely can the fact of the appoint-
ment operate upon the minds of any considerable num-
ber of the senators. What possible operation could it
have upon the judgment of a man of i-easonable intelli-
gence and integrity, that he had assented to the ap-
1 The Federalist, No. 66.1d. a No. 66. 3 id. Na 66*.
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S24 CONSTITUTION OP THE U. STATES. [bOOK III.
pointment of any individual, of whom he ordinarily
could have little, or no personal knowledge, and in
whose appointment he had concurred upon the judg-
ment and recommendation of others 1 Such an influ-
ence is too remote to be of much weight in human
affairs ; and if it exists at all, it is too common to form
a just exception to the competency of any forum.
§ 761. The next objection is to the inconvenience
of the union of the power with that of making treaties.
It has been strongly urged, that ambassadors are ap-
pointed by the president, with the concurrence of the
senate ; and if he makes a treaty, which is ratified by
two thirds of the senate, however corrupt or excep-
tionable his conduct may have been, th^e can be litde
chance of redress by an impeachment If the treaty
be ratified, and the minister be impeached for conclud-
ing it, because it is derogatory to the honour, the inter-
est, or perhaps to the sovereignty of the nation, who
(it is said) are to be his judges 1 The senate, by
whom it has been approved and ratified ? If the presi-
dent be impeached for giving improper instructiqns to
the minister, and for ratifying the treaty pursuant to his
instructions, who are to be his judges ? The senate,
to whom the treaty has been submitted, and by whom
it has been approved and ratified ? ^ This would be to
constitute the senators their own judges in every case
of a corrupt or perfidious execution of their trust.*
§ 762. Such is the objection pressed with unusual
earnestness, and certainly having a more plausible
foundation, than either of the preceding. It jH-e-sup-
poses, however, a state of facts of a very extracH^dinary
character, and having put an extreme case, argues frcwn
I 1 Tucker's Black. Conun. App. 335, 336. ^ The Federalist, No. 66.
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I
CH. X.] THE 8£irATE. 226
it against the propriety of any delegation of the power,
which m such a case might be abused. This is not
just reasoning m any case ; and least of aD in cases
respecting the polity and organization of gOTemments ;
for in all such cases there must be power reposed in
some person or body ; and wherever it is reposed, it
may be abused. Now, the case put is either one, where
the senate has ratified an appointment or treaty, inno-
cently believing it to be unexceptionable, and beneficial
to the country ; or where the senate has corruptf y rati-
fied it, and basely betrayed their trust In the former
case, the senate having acted with fidelity, according
to their best sense of duty, would feel no sympathy for
a corrupt executive or minister, who had acted with
fi*aud or dishonour unknown to them. If the treaty
were good, they might still desire to punish those, who
had acted basely or corruptly in negotiating it. If bad,
they would feel indignation for the imposition practised
upon them by an executive, or minister, in whom they
placed confidence, mstead of sympathy for his mis-
conduct. They would feel, that they had been betray-
ed into an error ; and would rather have a bias against,
than in favour of the deceiver.
§ 763. I( on the other hand, the senate had cor-
ruptiy assented to the appointment and treaty, it is
certain, that there would remwn no effectual remedy
by impeachment, so long as the same persons remained
members of the senate. But even here, two years
might remove a large number of the guilty conspirators ;
and public indignation would probably compel the re-
signation of all But is such a case supposable ? If it
be, then there are others quite witiim the same range
of supposition, and equally mischievous, for which there
can be no remedy. Suppose a majority of the senate,
VOL. II. 29
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fl&6 COirSTITUTION OF THE V. STATES. [bOOK HI.
or house of representatives, corruptly pass any law> or
violate the constitution, where is, th§ remedy 1 Sup-
pose the house of representatives carry into effect and
appropriate money corruptly m aid of such a corrupt
treaty, where is the remedy ? Why might it not be as
well urged, that the house of representatives ought not
to be entrusted with the power of impeachment, be-
cause they might comipdy concur with the executive
in an injurious or unconsututional measure? or might
comipdy aid the executive in negotiating a treaty by
public resolves, or secret instructions'? The truth is,
that all arguments of this sc^rt, which suppose a combi-
nation of the public functionaries to destroy the liberty
of the people, and the powers of the government, are
80 extravagant, that they go to the overthrow of all del*
egated power ; or they are so rare, and remote in prac-
tice, that they ought not to enter, as elements, into any
structure of a free government. The constituticm sup*
po9eS| that men may be trusted with power under rea-
sonable guards. It presumes, that the senate and the
executive wiU no more conspire to ov^throw the gov-
enunent, than the house of representatives. It suppos-
es the best pledges for fiddity to be in the character
of the individuab, and in the collective wisdom of the
people m the choice of agents. It does not in decency
presume, that the two thirds of the senate, representing
the states, will corrupdy unite with the executive, or
abuse their power. Neither does it suppose, that a
mi^ty of the house of r^resentatives will c(»Tuptly
refuse to impeach, or corrupUy pass a law.^
^ 764. But passing by, for the present, this general
reascming on the objections stated, let us see, if any
1 The Federalist, No. 66.
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CH. X.J THX SEITATX. 227
Other and better practical scheme for the trial of hn-
peachments can be devised. One scheme might be to
entrust it to the Supreme Court of the United States ;
another, to entrust it to that court, and the senate jointly;
a third, t9 entrust it to a special tribunal appointed per-
manently, or temporarily for the purpose. V it shall
appear, that to all of these schemes equally strong ob-
jections may be made, (and probably none more imex-
ceptionable could be suggested,) the argument in favour
of the senate will acquire more persuasive cogency.
^ 766. First, the entrusting of the trial of impeach-
ments to the Supreme Court. This was, in fact, the
original project in the convention.^ It was at first
agreed, that the jurisdiction of the national judiciary
should extend to impeachments of national officers.*
Afterwards this clause was struck out ;• and the power
to impeach was given to the house of representatives;^
and the jurisdiction of the trial of impeachments was
also given to the Supreme Court* Ultimately, the
same jurisdiction was assigned to the senate by the
vote of nine states agamst two.*
^ 756. The principal reasons, which prevailed m
the convention in favour of the final decision, and against
vesting the jurisdiction in the Supreme Court, may
fairly be presumed to have been those, which are stated
m the Federalist. Its language is as foDows : ** Where
else, than in the senate, could have been found a tribu-
nal sufficiently " dignified, or sufficiently independent?
What other body would be likely to feel confidence
enough in its own situation, to preserve, unawed and
1 Journal of Convention, 69, 131, 137, 189, 317, 996, 334, 395, »tO,
d44 346.
«'ld. 69, 121, 137. 3 Id. 189. < id. 217, 236. * Id. 2S6.
• Journal of Convention, 324, 326, 346.
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2S8 COirSTITUTION OF THE U. STATES. [BOOK Ul.
uninfluenced, the necessary impartiality between an in-
dividual accused, and the representatives of the people,
his accusers ? Could the Supreme Court have been
relied upon, as answering this description 1 It is much
to be doubted, whether the members of that tribunal
would, at all times, be endowed with so eminent a por-
tion of fortitude, as would be called for in the exercise
of so difficult a task. And it is still more to be doubted,
whether they would possess a degree of credit and
authority, which might, on certam occasions, be indis-
pensable towards reconciling the people to a decision,
which should happen to clash with an accusation brought
by their immediate representatives. A deficiency in
the first would be fatal to the accused ; in the last, dan-
gerous to the public tranquillity. The hazard in both
these respects could only be avoided by rendering that
tribunal more numerous, than would consist with a
reasonable attention to economy. The necessity of a
numerous court for the trial of impeachments is equally
dictated by the nature of the proceeding. This can
never be tied dpwn to such strict rules, either in the
delineation of the olBfence by the prosecutors, or m the
construction of it by the judges, as in common cases
serve to limit the discretion of courts in favour of per-
sonal secmity. There will be no jury to stand be-
tween the judges, who are to pronounce the sentence
of the law, and the party, who is to receive, or suffer it.
The fi^wful discretion, which a court of impeachments
must necessarily have, to doom to honour or to infamy
the most confidential, and the most distinguished char-
acters of the community, forbids the commitment of
the trust to a small number of persons. These con-
siderations seem alone to authorize a conclusion, that
the Supreme Court would have been an improper sub-
stitute for the senate, as a court of impeachments.
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CH. X.] THE SBITATC. 229
§ 757. ^ There remains a further consideration, which
will not a little strengthen this conclusion. It is this.
The punishment, which may be the consequence of
conviction upon impeachment, is not to termmate the
chastisement of the offender. After having been sen-
tenced to a perpetual ostracism from the esteem, and
confidence, and honours, and emoluments of his coun-
try, he will still be liable to prosecution and punishment
in the ordinary course of law. Would it be proper,
that the persons, who had disposed of his fame, and his
most valuable rights, as a citizen, in one trial, should, in
another trial, for the same offence, be also the disposers
of his life and fortune ? Would there not be the greatest
reason to apprehend, that error in the first sentence
would be the parent of error in the second sentence ?
That the strong bias of one decision would be apt to
overrule the influence of any new lights, which might
be brought to vary the complexion of another decision?
Those, who know any thing of human nature, will not
hesitate to answer these questions in the affirmative ;
and will be at no loss to perceive, that by making the
same persons judges in both cases, those, who might
happen to be the objects of prosecution, would, in a
great measure, be deprived of the double security in-
tended them by a double trial. The loss of life and
estate would often be virtually included in a sentence,
which in its terms imported nothing more, than dis-
mission fit)m a present, and disqualification for a fu-
ture office. It may be said, that the intervention of
a jury in the second mstance would obviate the danger.
But juries are frequently influenced by the opmions of
judges. They are sometimes induced to find special
verdicts, which refer the main question to the decision
of the court Who would be willing to stake his life
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230 coNSTiTimoir or the v. states, [book ni.
and bis estate upon a verdict of a jury acting under
the auspices of judges, who had predetermined his
guUtr^
^ 768. That there is great force in this reasoning aH
persons of common candour must allow ; that it is in
every rfespect satisfactory and unanswerable, has been
denied, and may be fairly questioned. That part of it,
which is addressed to the trial at law by the same
judges might have been in some degree obviated by
confiding the jurisdiction at law over the offence (as in
£atct it is now confided) to an inferior tribunal, and ex-
cluding any judge, who sat at the impeachment, fix>m
sitting in the court of trial. Still, however, it cannot be
denied, that even in such a case the prior judgment of
the Supreme Court, if an appeal to it were not allow-
able, would have very great weight upon the mmds of
inferior Judges. But that part of the reasoning, which
is addressed to the importance of numbers in giving
weight to the decision, and especiaUy that, which is
addressed to the public confidence and respect, which
ought to follow upon a decision, are entiUed to very
great weight It is fit, however, to give the answer to
the whole reasoning by the other side in the words of
a learned commentator, who has embodied it with no
small share of ability and skill. The reasoning ''seems,**
says he, "to have forgotten, that senators may be dis-
continued from their seats, merely from the effect of
popular diapprobation, but that the judges of the Su-
preme Court cannot It seems also to have forgotten,
that whenever the president of the United States b im-
peached, the constitution expressly requires, that the
chief justice of the Supreme Court shall preside at the
1 The Federalist, No. 65. — But aee Rawle on the CoDstatotioii« ch. 92|
p. 211, 312.
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CH. X«] THE 8ENATS. 231
trial Are all the confidence, all the firmness, and all
the impartiality of that court, supposed to be concentred
in the chief justice, and to reside in his breast only 1
If that court could not be relied on for the trial of im-
4>eachments, much less would it seem worthy of reliance
for the determination of any question between the
United States and a particidar state; much less to
/decide upon the life and death of a person, whose
crimes might subject him to impeachment, but whose
' influence might avert a conviction. Yet the courts of
the United States, are by the constitution regarded, as
' the proper tribunals, where a party, convicted upon an
impeachment, may receive that condign punbhment,
which the nature of his crimes may require ; for it must
not be forgotten, that a person, convicted upon an im*
peachment, will nevertheless be liable to indictment,
trial, judgment, and punishment accordmg to law, &c*
The question, then, might be retorted ; can it be sup-
posed, that the senate, a part of whom must have been
ekiher particq>s criminiawith the person impeached, by
advising the measure, for which he is to be tried, or
must have joined the opposition to that measure, when
proposed and debated in the senate, would be a more
independent, or a more unprejudiced tribunal, than a
court, composed of judges, holding their offices during
good behaviour ; and who could neither be presumed
to have participated in the crime, nor to have prejudged
the crimuial ? '* *
^ 769. This reasoning also has much force in it;
but in candour also it must be admitted to be not
wholly unexceptionable. That part, which is addressed
to the circumstance of the chief justice's presidmg at
the trial of the president of the United States, was (as
1 1 Tuck. Black. Comm. App. 237.
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232 coirsTiTUTioN of th£ u. states, [book ni.
we shall hereafter see) not founded on any supposition,
that the chief justice would be superior in confidence,
and firmness, and impartiality, to the residue of the
judges, (though in talents and public respect, and
acquirements, he might fairly be presumed their
superior ;) but on the necessity of excluding the vice
president Grom the chah^, when he might have a mani-
fest interest, which would destroy his impartiality. That
part, which is addressed to the supposition of the sena-
tors being partidpes criminis, is siill more exceptiona-
ble; for it is not only incorrect to affirm, that the
senators must be, in such a predicament, but in all
probability the senators would, in almost all cases,
be without any .participation in the offence. The
offences, which would be. generally prosecuted by
impeachment, would be those only of a high character,
and belonging to persons in eminent stations, — such
as a head of department, a foreign minister, a judge,
a vice president, or a president. Over the con-
duct of such persons the senate could ordinarily have
no control ; and a corrupt combination with them, in
the discharge of the duties of their respective offices,
could scarcely be presumed. Any of these officers
might be bribed, or commit gross misdemeanours, with-
out a single senator having the least knowledge, or
participation in the offence. And, indeed, very few of
the senators could, at any time, be presumed to be in
habits of intimate personal confidence, or connexion
with many of these officers. And so far, as public
responsibility is concerned, or public confidence is
required, the tenure of office of the judges would have
no strong tendency to secure the former, or to assuage
public jealousies, so as peculiarly to encourage the lat-
ter. It is, perhaps, one of the circumstances, most
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CH. X.] THE SClTATfi* StSS
important in the discbarge of judicial duties, that they
rarely carry with them any strong popular &Tour, of
popular influence. The influence, if any, is of a differ-*
ent sort, arising from dignity of life and conduct, absti<*
nence from political contests, exclusive devotion to the
advancement of the law, and a firm administration of
justice ; cu-cumstances, which are felt more by the pro-
fession, than they can be expected to be praised by the
public.
^ 760. Besides ; it ought not to be overlooked, that
such an additional accumulation of power in the judicial
department would not only furnish pretexts for clamour
against it, but might create a general dread of its influ**
ence, which could hardly fail to disturb the salutary
effects of its ordinary functions.* There is nothing, of
which a free people are so apt to be jealous, as of the
existence of political functions, and political checks, in
those, who are not appointed by, and made directly
responsible to themselves. The judicial tenure of oflSce
during good behaviour, though in some respects most
favourable for an independent discharge of these func-
tions and checks, is at the same time obnoxious to
some strong objections, as a remedy for impeachable
offences.
§ 761. There are, however, reasons of great weighti
besides those, which have beenah-eady alluded to,
which fully justify the conclusion, that the Supreme
Court is not the most appropriate tribunal to be invest-
ed with authority to try impeachments.
§ 762. In the first place, the nature of the fimctions
to be performed. The offences, to which the power of
impeachment has been, and is ordinarily applied, as a
remedy, are of a political character. Not but that
1 The Federalist, No. 65.
VOL. II. 30
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S34 CONSTITUTIOK OF THE U. STATES. [BOOK IIL
t
crimes of a strictly legal character fall within the scope
ci the power, (for, as we shall presently see, treason,
bribery, and other high crimes and misdemeanom*s are
expressly within it ;) but that it has a more enlarged
operation, and reaches, what are aptly termed, political
offences, growing out of personal misconduct, or gross
neglect, or usurpation, or habitual disregard of the pub-
lic interests, m the discharge of the duties of political
office* These are so various in their character, and so
indefinable in their actual involutions, that it is almost
impossible to provide systematically for them by posi-
tive law. They must be examined upon very broad
and comprehensive principles of public policy and duty.
They must be judged of by the habits, and rules, and
principles of diplomacy, of departmental operations and
arrangements, of parliamentary practice, of executive
customs and negotiations, of foreign, as well as of
domestic political movements ; and in short, by a great
yariety of circumstances, as well those, which aggravate,
as those, which extenuate, or justify the offensive
^ts, which do not properly belong to the judicial
character in the ordinary administration of justice, and
are far removed from the reach of municipal jurispru-
dence. They are duties, which are easily imderstood
by statesmen, and are rarely known to judges. A
tribunal, composed of the former, would therefore be
&r more competent, in point of intelligence and ability,
than the latter, for the discharge of the functions, all
other circumstances being equal And surely, in such
grave affairs, the competency of the tribunal to discharge
the duties in the best manner is an indispensable qual-
ification.
^ 763. In the next place, it is obvious, that the
strictness of the forms of proceeding in cases of offen-
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CH. X.] THE 8£NAT£. 235
I
ces at common law are ill adapted to impeachments.
The very habits growing out of judicial emplojrments ;
the rigid manner, in which the discretion of judges is
limited, and fenced in on all sides, in order to protect
persons accused of crimes by rules and precedents ;
and the adherence to technicad principles, which, per-
haps, distinguishes this branch of the law, more than
any other, are all ill adapted to the trial of political of-
fences in the broad course of impeachments. And it
has been observed with great propriety, that a tribund
of a liberal and comprehensive character, confined, as
little as possible, to strict forms, enabled to continue its
session as long, as the nature of the law may require,
qualified to view the charge in all its bearings and de-
pendencies, and to appropriate on sound principles d[
public policy the defence of the accused, seems indis-^
pensable to the value of the trial.* The history of im*
peachments, both in England and America, justifies the
remark. There is little technical in the mode of pro-
ceeding ; the charges are suflSiciently clear, and yet in '
a general form ; there are few exceptions, which arise
m the application of the evidence, which grow out of
mere technical rules, and quibbles. And it has repeat-
edly been seen, that the functions have been better un-
derstood, and more liberally and justly expounded by
statesmen, than by mere lawyers. An illustrious in-
stance of this sort is upon record in the case of the
trial of Warren Hastings, where the question, whether
an impeachment was abated by a dissolution of pariia-
ment, was decided in the negative by the house of lords,
as well as the house of commons, against what seemed
to be the weight of professional opinion.'
1 Rawle OD the Constitution, ch. 22, p. 212.
9 4 Black. Comm, 400, Christian's Note.
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886 coirsTiTUTioN of the u. states, [book hi.
§ 764. In the next place, the very functions, in-
voMng political interests and connexions, are pre-
cisely those, which it seems most important to exclude
from the cognizance and participation of the judges of
the Supreme Court. Much of the reverence and re-
spect, belonging to the judicial character, arise from the
belief, that the tribunal is impartial, as well as enlighten-
ed ; just, as well as searching. It is of very great conse-
quence, that judges should not only be, in fact, above
all exception in this respect ; but that they should be
generally believed to be so. They should not only be
pure ; but, if possible, above suspicion. Many of the
offences, which will be charged against public men,
will be generated by the heats and animosities of party;
and the very circumstances, that judges should be call-
ed to sit, as umpires, in the controversies of party,
would inevitably involve them in the common odium
of partizans, and place them in public opinion, if not
in fact, at least in form, in the array on one side, or the
other. The habits, too, arising from such functions,
will lead them to take a more ardent part in public
discussions, and in the vindication of their own political
decisions, than seems desirable for those, who are
daily called upon to decide upon the private rights
and claims of men, distinguished for their political^con-
sequence, zeal, or activity, in the ranks of party. In a
free government, like ours, there is a peculiar propriety
in withdrawing, as much as possible, all judicial func-
tionaries from the contests of mere party strife. With
all their efforts to avoid them, from the free intercourse,
and constant changes in a republican government, both
of men and measures, there is, at all times, the most
imminent danger, that all classes of society will be
drawn mto the vortex of politics. Whatever shall have
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CH. X.] THE 8£KAT£. 237
a tendency to secure, in tribunals of justice, a spirit of
moderation and exclusive devotion to juridical duties is
of inestimable value. What can more surely advance
this object, than the exemption of them from all partici-
pation in, and control over, the acts of political men
in their official duties? Where, indeed, those acts
fall within the character of known crimes at common
law, or by positive statute, there is litde difficulty in
the duty, because the rule is known, and equally ap-
plies to all persons in and out of office ; and the facts
are to be tried by a jury, according to the habitual
course of investigation in common cases. The remark
of Mr. Woodeson on this subject is equally just and
appropriate. After having enumerated some of the
cases, in which impeachments have been tried for polit-
ical offences, he adds, that from these "it is apparent,
how litde the ordinary tribunals are calculated to take
cognizance of such offences, or to investigate and re-
form the general polity of the state." *
§ 765. In the next place, the judges of the Supreme
Court are appointed by the executive ; and will nat-
urally feel some sympathy and attachment for the per-
son, to whom they owe this honour, and for those,
whom he selects, as his confidential advisers in the
departments. Yet the president himself, and those
confidential advisers, are the very persons, who are
eminenfly the objects to be reached by the power of
impeachment The very circumstance, that some,
perhaps a majority of the court, owe their elevation to
the same chief magistrate, whose acts, or those of his
confidential advisers, are on trial, would have some
tendency to diminish the public confidence in the
impartiality and independence of the tribunal.
1 2 Woodeeon, Lect. 40, p. 602.
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238 CONSTITUTION OF THE V. STATES, [bOOK III.
§ 766. But, in the next place, a far more weighty
consideration is, that some of the members of the judir
cial department may be impeached for malconduct in
office ; and thus, that spirit, which, for want of a better
term, has been called the corporation spirit of organized
tribunals and societies, will naturally be brought into
play. Suppose a judge of the Supreme Court should
. himself be impeached ; the number of his triors would
not only be diminished ; but all the attachments, and
partialities, or it may be the rivalries and jealousies of
peers on the same bench, may be, or (what is practi-
cally almost as mischievous) may be suspected to be
put in operation to screen or exaggerate the offence.
Would any person soberly decide, that the judges of
the Supreme Court Would be the safest and the best
of all tribunals for the trial of a brother judge, taking
human feelings, as they are, and human infirmity, as it
is? If not, would there not be, even in relation to
inferior judges, a sense of indulgence, or a bias of opin-
ion, upon certain judicial acts and practices, which
might incline their minds to undue extenuation, or to
imdue harshness 1 And if there should be, in fact, no
danger fix)m such a source,* is there not some danger,
imder such circumstances, that a jealousy of the opera-
tions of judicial tribunals over judicial offences, would
create in the minds of the community a broad distinc-
tion in regard to convictions and punishments, between
them and merely political offences ? Would not the
power of impeachment cease to possess its just rever-
ence and authority, if such a distinction should prevail ;
and especially, if political victims rarely escaped, and
judicial officers as rarely suffered ? Can it be desira-
ble thus to create any tendency in the public mind
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CH. X.] THE SENATE. 2S9
towards the judicial department, which may. impair its
general respect and daily utility ? *
§ 767. Considerations of this sort cannot be over-
looked in inquiries of this nature ; and if to some minds
they may not seem wholly satisfactory, they, at least,
establish, that the Supreme Court is not a tribunal for
the trial of impeachment, wholly above all reasonable
exceptions. But if, to considerations of this sort, it is
added, that the common practice of free governments,
and especially of England, and of the states composing
the Union, has been, to confide this power to one de-
partment of the legislative body, upon the accusadon
of another ; and that this has been found to work well,
and to adjust itself to the public feelings and prejudices,
to the dignity of the legislature, and to the tranquillity of
the state, the inference in its favour cannot but be
gready strengthened and confirmed.
§ 768. To those, who felt diflSculties in confiding to
the Supreme Court alone the trial of impeachments, the
scheme might present itself^ of uniting that court with
the senate jointly for this purpose. To this union many
of the objections already stated, and especially those,
founded on the peculiar functions of the judicial depart-
ment, would apply with the same force, as they do tovest-
mg the Supreme Court with the exclusive jurisdiction.
In some other respects there would result advantages
from the union ; but they would scarcely overbalance
the disadvantages.^ If the judges, compared with the
whole body of the senate, were few in number, their
weight would scarcely be felt in that body. The
habits of co-operation in common daily duties
I But see Rawle on the Constitution, ch. 22, p. 214.
« The Federalist, No. 65.
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240 CONSTITUTION OP THE U. STATES. [BOOK III.
would create among the senators an habitual confi-
dence, and sympathy with each other ; and the same
habits would produce a correspondent influence among
the judges. There would, therefore, be two distinct
bodies, acting together pro re natOj which wer^ in a
great measure strangers to each other, and with feel-
ings, pursuits, and modes of reasoning wholly distinct
from each other. Great contrariety of opinion might
naturally be presumed under such circumstances to
spring up, and, in all probability, would become quite
marked in the action of the two bodies. Suppose, upon
an impeachment, the senators should be on one side,
and the judges on the other; suppose a minority compos-
ed of all the judges, and a considerable number of the
senators ; or suppose a majority made by the co-oper-
ation of all the judges ; in these, and many other cases,
there might be no inconsiderable difficulty in satisfy-
ing the public mind, as to the result of the impeachment.
Judicial opinion might go urgently one way, and politi-
cal character and opinion, as urgently another way.
Such a state of things would have littie tendency to
add weight, or dignity to the court, in the opinion of the
community. And perhaps a lurking suspicion might
pervade many minds, that one body, or the other, had
possessed an imdue preponderance of mfluence in the
actual decision. Even jealousies and discontents might
grow up in the bosoms of the component bodies them-
selves, from their own difference of structure, and
habits, and occupations, and duties. The practice of
governments has not hitherto established any great
value, as attached to the intermixture of different bodies
for single occasions, or temporary objects.
§ 769. A third scheme might be, to entrust the trial
of impeachments to a special tribunal, constituted for
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C H. X.] THE SfNATf. 241
that sole purpose. But whatever arguments may be
found in favour of such a plan, there will he found to
be correspondent objections and difficulties. It would
tend to increase the complexity of the political machine,
and add a new spring to the operations of the govern-
ment, the utility of which would be at least question-
able, and might clog its just movements.* A court of
this nature would be attended with heavy expenses ;
and might, in practice, be subject to many casualties
and inconveniences. It must consist either of per-
manent officers, stationary at the seat of government,
and of course entitled to fixed and regular stipends ;
or of national officers, called to the duties for the occa-
sion, though previously designated by office, or rank ;
or of officers of the state governments, selected when
the impeachment was actually depending.* Now,
either of these alternatives would be found full of em-
barrassment and intricacy, when an attempt should be
made to give it a definite form and organization. The
eourt, in order to be efficient and mdependent, ought
to be numerous. It ought to possess talents, experi-
ence, dignity, and weight of character, in order to
obtain, or to hold, the confidence of the nation. What
national officers, not belonging to either of the great
departments of the government, legislative, executive,
or judicial, could be found, embracing all these requisite
quaUfications ? And if they could be, what compensa-
tion is to be made to them, in order to mamtain their
characters and unportance, and to secure their services ?
If the court is to be selected from the state fimctiona-
ries, in what manner is this to be accomplished ? How
can their acceptance, or performance of the duties, be
1 The Federalist, No. 64. « Id. No. 05.
VOL. II. 31
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242 coNSTiTirrioir of the u.^ates. [book iji.
either secured, or compelled? Does it not at once sub-
mit the whole power of impeachment to the control of
the state governments, and thus surrender into their
hands all the means of making it efficient and satisfac-
tory 1 In political contests it cannot be supposed, that
either the states, or the state functionaries, wUl not be-
come partisans, and deeply interested in the success, or
defeat of measures, in the triumph, or the rum of rivals,
or opponents. Parties will naturaUy desire to screen
a friend, or overwhelm an adversary ; to secure the
predominance of a local policy^ or a state party ; and if
so, what guarantee is there for any extraordinary fidel-
ity, independence, or impartiality, in a tribunal so com-
posed, beyond all others 1 Descending from such gen-
eral inquiries to more practical considerations, it may
be asked, how shall such a tribunal be composed?
Shall it be composed of state executives, or state legis-
latoi*s, or state judges, or of a mixture of all, or a selec-
tion from all 1 If the body is very large, it will become
unwieldy, and feeble from its own weight. If it be a
mixture of all, it will possess too many elements of
discord and diversities of judgment, and local and pro-
fessional opinion. If it be homogeneous in its charac-
ter, as if it consist altogether of one class of men, as of
the executives of all the states, or the judges of the
Supreme Courts of all the states, can it be supposed,
(even if an equality m all other respects could be cer-
tainly obtained,) that persons, selected mamly by the
states for local and peculiar objects, could best admin-
ister the highest and most difficult functions of the
national government 1
^ 770. The Federalist has spoken with unusual
fi*eedom and directness on this subject. "The first
scheme,** (that is, of vesting the power in some per-
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OH. X.] THE 8£NAT£. 243
manent national officers,) " will be reprobated by every
man, who can compare the extent of the public wants
with the means of supplying them. The second/'
(that is, of vesting it m state officers,) " will be espoused
with caution by those, who will seriously consider the
difficulties of collecting men dispersed over the whole
Union ; the injury to the innocent from the jMt)-
crastinated determination of the charges, which might
be brought agamst them ; the advantage to the guilty
from the opportunites, which delay would afford for
intrigue and corruption ; and in some cases the detrir
ment to the state from the prolonged inaction of men,
whose firm and faithful execution of their duty might
have exposed them to the persecution of an intemper-
ate or designing majority in the house of representa-
tives. Though this latter supposition may. seem harsh,
and might not be likely often to be verified ; yet it
ought not to be forgotten, that the demon of faction
will, at certain seasons, extend his sceptre over all
numerous bodies of men.*' And the subject is conclud-
ed with the following reflection. ^' If mankind were to
resolve to agree in no institution of government, until
every part of it had been adjusted to the most exact
standard of perfection, society would soon become a
general scene of anarchy, and the worid a desert'* *
§ 771. A scheme somewhat different fit)m either
of the foregoing has been recommended by a learned
commentator,* drawn from the Virginia constitution, by
which, in that state, all impeachments are to be tried in
the courts of law, " according to the laws of the land ;"
and by the state laws the facts, as in other cases, are to
be tried by a jury. But the objections to this course
1 The Federalist, No. 65.
« 1 Tucker's Black. Coram. App. 337, 338.
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244 COirflTITUTIOlf of the v. states, [book III.
would be very serious, not only from the consid-
erations already urged, but from the difficulty of
impanneling a suitable jury for such purposes. From
what state or states is such a jury to be drawn 1 How
is it to be selected, or composed ? What are to be the
qualifications of the jurors 1 Would it be safe to en-
trust the political interests of a whole people to a com-
mon panel 1 Would any jury in times of party excite-
ment by foimd sufficiently firm to give a true verdict,
unaffected by the popularity or odium of the measure,
when the nation was the accuser 1 These questions
are more easily put, than they can be satisfactorily
answered. And, indeed, the very circumstance, that
the example of Virginia has found little favour in o^er
states, furnishes decisive proofs that it is not deemed
better than others, to which the national constitution
bears the closest analogy.
§ 772 When the subject was before the state con-
ventions, although here and there an objection was
started against the plan, three states only formally pro-
jposed any amendment Virginia and North-Carolina
recommended, ** that some tribunal, pther thai;i the sen-
ate, be provided for trying impeachments of senators^ ^
leaving the provision in all other respects, as it stood.
New-York alone recommended an amendment, that
the senate, the judges of the Supreme Court, and the
first or senior judge of the highest state court of gen-
eral or ordinary common law jurisdiction in each state
should constitute a court for the trial of impeachments.*
This recommendation does not change the posture of a
single objection. It received no support elsewhere ;
and the subject has since silentiy slept without any
effort to revive it.
^ Journ. of CoDventioD, Supp. 435, 448. » Id. 437.
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CH. X.] THE SENATE. 246
§ 773. The conclusion, to which, upon a large sur-
vey of the whole subject, our judgments are naturally
led, is, that the power has been wisely deposited with
the senate.* In the language of a learned commentator,
it may be said, that of all the departments of the gov-
ernment, ** none will be found more suitable to exercise
this peculiar jurisdiction, than the senate. Although,
like their accusers, they are representatives of the peo-
ple ; yet they are by a degree more removed, and hold
their stations for a longer term. They are, therefore,
more independent of the people, and being chosen with
the knowledge, that they may, while in office, be called
upon to exercise this high function, they bring with
them the confidence of their constituents, that they will
iiedthfully execute it, and the implied compact on their
own part, that it shall be honestly discharged. Pre-
cluded from ever becoming accusers themselves, it is
theur duty not to lend themselves to the animosities of
party, or the prejudices agamst individuals, which may
sometimes unconsciously mduce the house of represen-
tatives to the acts of accusation. Habituated to com-
prehensive views of the great political relations of the
country, they are naturally the best "qualified to decide
on those charges, which may have any connexion with
transactions abroad, or great political interests at home.
And although we cannot say, that, like the English
house of lords, they form a distinct body, wholly unin-
fluenced by the passions, and remote fix)m the inter-
ests, of the people ; yet we can discover m no other
division of the government a greater probability of im-
partiality and independence.^' *
^ 774. The remaining parts of the clause of the
constitution now under consideration will not require an
' The Fedepolist, No. 65.
s RawleontheConstch.22,p.312,213.
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246 CONSTITUTION OF THE U. STATES* [bOOK III.
daborate commentary. The •first is, that the senate,
when sitting as a court of impeachment,'^ shall be on oath
or affirmation ; '* a provision, which, as it appeals to the
conscience and integrity of the members by the same
sanctions, which apply to judges and jurors, who sit in
other trials, will commend itself to all persons, who deem
the highest trusts, rights, and duties, worthy of the same
protection and security, at least, as those of the hum-
blest order. It would, indeed, be a monstrous anomaly,
that the highest officers might be conyicted of the
worst crimes, without any sanction being interposed
against the exercise of the most vindictive passions ;
while the humblest individual has a right to demand an
oath of fidelity from those, who are his peers, and his
triors. In England, however, upon the trial of impeach-
ments, the house of lords are not under oath ; but only
make a declaration upon their honour.* This is a strange
anomaly, as in all civil and criminal trials by a jury, the
jurors are under oath; and there seems no reason, why
a sanction equally obligatory upon the consciences of
the triors should not exist m trials for capital or other
offences before ever^ other tribunal. What is there in
the honour of a peer, which necessarily raises it above
the honour of a commoner 1 The anomaly is rendered
still more glaring by the fact, that a peer cannot give
testimony, as a witness, except on oath ; for, here, his
honour is not trusted. The maxim of the law, in such
a case, is injudicio rum credilur^ nisi juratis.^ Why
should the obligation of a judge be less solemn, than the
obligation of a witness 1 The truth is, that it is a privi-
lege of power, conceded in barbarous times, and founded
on feudal sovereignty, more than on justice, or princi-
ple.
1 1 Black. Comm. 403 ; 4 Inst 49 ; 3 Elliot's Debates, 5a
9 1 Black. Comm. 4(J2.
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CH. X.] THE SENATC. 247
^ 775. The next provision is : " When the president
"of ,the United States is tried, the chief justice shall
^ preside.*' The reason of this clause has been already
adverted to. It was to • preclude the vice president,
who might be supposed to have a natural desire to suc-
ceed to the office, from being instrumental in procuring
the conviction of the chief magistrate.* Under such
circumstances, who could be deemed more suitable to
preside, than the highest judicial magistrate of the
Union. * His impartiality and independence could be as
little suspected, as those of any person in the country.
And the dignity of his station might well be deemed
an adequate pledge for the possession of the highest
accomplishments.
^ 776. It is added, " And no person shall be convict-
**ed, without the concurrence of two thirds of the
"members present*' Although very numerous objec-
tions were taken to the constitution, none seems to have
presented itself against this particular quorum required
for a conviction ; and yet it might have been fairiy
thought to be open to attack on various sides from its
supposed theoretical inconvenience and incongruity.
It might have been said with some plausibility, that it
deserted the general principles even of courts of jus-
tice, where a mere majority make the decision ; and, of
all legislative bodies, where a similar rule is adopted ;
and, that the requisition of two thirds- would reduce the
power of impeachment to a mere nullity. Besides ;
upon the trial of impeachments in the house of lords
the conviction or acquittal is by a mere majority ; * so
that there is a failure •of any analogy to support the
precedent.
1 Rawle on Const, ch. 22, p. 216.
9 Com. Dig. Parliament, L. 16^ 17 ; 2^ Woodeson Lect 40, p. 612.
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248 CONSTITUTION OP THE U. STATES. [BOOK III.
^ 777. It does not appear from any authentic memo-
rials, what were the precise grounds, upon which thb
limitation was interposed. But it may well be conjec-
tured, that the real grounds were, to secme an impartial
trial, and to guard public men from being sacrificed to
the immediate impulses of popular resentment or party
predommance. In England, the house of lords, from its
very structure and hereditary independence, furnishes
a sufficient barrier against such oppression and injus-
tice. Mr. Justice Blackstone has remarked, with mani-
fest satisfaction, that the nobility ^^have neither the
same bterests, nor the same passions, as popular asseqi-
blies ; and, that " it is proper, that the nobility should
judge, to insure justice to the accused ; as it is proper^
that the people should accuse, to insure justice to the
commonwealth.*' * Our senate is, from the very theory
of the constitution, founded upon a more popular basis ;
and it was desirable to prevent any combination of a
mere majority of the states to displace, or to destroy a
meritorious public officer. If a mere majority were
sufficient to convict, there would be danger, in times of
high popular commotion or party spirit, that the influ-
ence of the house of representatives would be found
irresistible. The only practicable check seemed to be,
the introduction of the clause of two thirds, which
would thus require an union of opinion and interest,
rare, except in cases where guilt was manifest, and in-
nocence scarcely presumable. Nor could the limitation
be justly complained of; for, in common cases, the law
not only presumes every man innocent, until he is prov-
ed guilty ; but unanimity in the verdict of the jury is
indispensable. Here, an intermediate scale is adopted
between unanimity, and a mere majority. And if the
1 4 Black. Comm. 261.
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CH. X.] THE SEKATE. 249
guilt of a public oflScer cannot be established to the sat-
isfaction of two thirds of a body of high talents and
acquirements, which sympathizes with the people, and
represents the states, after a full investigation of the
&cts, it must be, that the evidence is too infirm, and too
loose to justify a convic.tion. Under such circum-
stances, it would be far more consonant to the notions
of justice in a republic, that a guilty person should
escape, than that an innocent person should ^become
the victim of injustice from popular odium, or party
combinations.
^ 778. At the distance of forty years, we may look
back upon this reasoning with entire satisfaction. The
senate has been found a safe and efiective depositary of
the trial of impeachments. During that period but four
cases have occurred, requiring this high remedy. In
three there have been acquittals ; and in one a convic-
tion. Whatever may have been the opinions of zeal-
ous partisans at the times of their occurrence, the sober
judgment of the nation sanctioned these results, at least,
on the side of the acquittals, as soon as they became
matters of history, removed from the immediate influ-
ences of the prosecutions. The unanimity of the awards
of public opinion, in its final action on these controver-
sies, has been as great, and as satisfactory, as can be
attributed to any, which involve real doubt, or enlist
warm prejudices and predilections on either side.* No
reproach has ever reached he senate for its unfaithful
discharge of these high functions ; and the voice of a
1 The trials, here alluded to, were of William Blouot in 1799, of Sam-
uel Chase in 1805, of John Pickering in 1803, and of James H. Peck in
1831. The three former are alluded to in Rawle on the Const ch. 2SI,
p. 215. See also 4 Tuck. Black. Comm. 261, note ; Id. App. 57, and
Senate Journals of the respective years. Hawle on Const cL 22, p. 215 ;
Seijeant on Constitutional Law, ch. 29, p. 363, 364.
VOL. II. 32
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250 CONSTITUTION OF THB 17. STATES. [bOOK Ut«
state has rardy, if ever, displaced a single senatw for
his vote on such an occasion. What more could be
asked in the progress of any government ? What more
could experience produce to justify confidaice in the
institution ?
§ 779. The next clause is^ that ^ Judgment in cases
*^ of impeachment shall not extend further, than to re-
^moval from office, and disqualification to hdd and
^^ enjoy any office of honour, trust, or profit, uivler the
** United States. But the party convicted shall never-
**theless be liable and subject to indictment, trial, judg-
ement, and punishment, according to law.''
^ 780. It is obvious, that, upon trials on impeach-
ments, one of two courses must be adopted m case
of a conviction ; either for the court to proceed to jmx)-
nounce a full and complete sentence of punbhment for
the offence according to the law of the land in like
cases, pending in the common tribunals of justice, su-
peradding the removal from office, and the consequent
disabilities ; or, to confine its sentence to the removal
fix)m office and other disabilities. If the £uiner duty
be a part of the constitutional functions of the courts
then, in case of an acquittal, there cannot be another
trial of the party for the same offence in the common
tribunals of justice, because it is repugnant to the whole
theory of the common law, that a man should be
brought into jeopardy of life or limb more than once for
the same offence.^ A plea of acquittal is, therefore, an
absolute bar against any second prosecution for the
same offence. If the court of impeachments is merely
to pronounce a sentence of removal from office and the
other disabilities ; then it is indispensable, that provi-
sion should be made, that the common tribunals of jus-
1 4 Black. Comm. 335, 261 ; Hcwk. P. C^ B. 2, ch. 35.
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CH. X.] THE 8£irATB. 251
tice should be at liberty to entertain jurisdiction of
the offence, for the purpose of inflicting the common
punishment applicable to unoflScial offenders. 0th*
erwise, it might be matter of extreme doubt, whether,
consistendy with the great maxim abore mentioned,
established for the security of the life and limbs and
Kberty of the citizen, a second trial for the same of-
fence could be had, either after an acquittal, or a
eonviction in the court of impeachments. And if no
such second trial could be had, then the grossest official
offenders might escape without any substantial punish-
ment, even for crimes, which would subject their feUow
citiz^is to capital punishment
§781. The constitution, then, having provided, that
judgment upon impeachments shall not extend fiulher,
than to removal from office, and disqualification to hold
office, (which, however afflictive to an ambitious and
elevated mind, would be scarcely felt, as a punishment,
by the proffigate and the base,) has vrisely subjected
the party to trial in the common criminal tribimals,
^ for the purpose of receiving such punishment, as ordi-
narily belongs to the offence. Thus, for ms^tance^
treason, which by our laws is a capital offence, may
receive its appropriate punishment ; and bribery in high
officers, which otherwise would be a mere disqualifica-
tion from office, may have the measure of its infamy
dedt out to it with the same unsparing severity, which
attends upon other and humbler offenders.
^ 782. In England, the judgment upon impeach-
ments is not confined to mer^ removal from office ; but
extends to the whole punishment attached by law to
the offence. The house of lords, therefore, upon a
conviction, may, by its sentence, inflict capital punish-
Vfkent; or perpetusd banishment; or forfeiture of goods
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262 CONSTITUTION OW THE U. STATES. [bOOK III.
and lands ; or fine and ransom ; or imprisonment ; as'
well as removal from office, and incapacity to hold office,
according to the nature and aggravation of the offence.^
§ 783. As the ofiences, to which the remedy of im-
peachment has been, and will continue to be principally
applied, are of a political nature,' it is natural to sup-
pose, that they will be often exaggerated by party
spirit, and the prosecutions be sometimes dictated by
party resentments, as well as by a sense of the pub-
lic good. There is danger, therefore, that in cases
of conviction the punishment may be whoUy out of
proportion to the offence, and pressed as much by
popular odium, as by aggravated crime. From the
nature of such offences, it is impossible to fix any exact
grade, or measure, either in the offences, or the punish-
ments ; and a very large discretion must unavoidably
be vested in the court of impeachments, as to both.
Any attempt to define the offences, or to affix to every
grade of distinction its appropriate measure of punish-
ment, would probably tend to more injustice and incon-
venience, than it would correct ; and perhaps would
render the power at once inefficient and unwieldy.
The discredon, then, if confided at all, being peculiarly
subject to abuse, and connecting itself with state par-
ties, and state contentions, and state animosities, it was
deemed most advisable by the convention, that the
power of the senate to inflict punishment should merely
reach the right and qualifications to office ; and thus
take away the temptation in factious times to sacrifice
good and great men upon the altar of party. History
\ Com. Dig. Parliament, L. 44; 2 Woodeson, Lect 40, p. 611 to
614.
9. 2 WoodesoD, Lect 40, p. 601, 601
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CH. X.] THE SEITATE. 253
had sufficiently admonished them, that the power of
impeachment had been thus mischievously and inor-
dinately applied in other ages ; and it was not safe to
disregaa*d those lessons, which it had left for our in-
struction, written not unfrequently in blood. Lord
Strafford, in the reign of Charles the First, and Lord
Stafford, in the reign of Charles the Second, were both
convicted, and punished capitally by the house of lords ;
and both have been supposed to have been rather vic-
tims to the spirit of the times, than offenders meriting
such high punishments.^ And other cases have occur-
red, in which whatever may have been the demerits of
the accused, his final overthrow has been the result of
poUtical resentments and hatreds, far more than of any
desire to promote public justice.*
§ 784. There is wisdom, and sound poUcy, and in-
trinsic justice in this separation of the offence, at least
so far, as the jurisdiction and trial are concerned, into
its proper elements, bringing the political part under
the power of the political department of the govern-
ment, and retaining the civil part for presentment and
trial in the ordinary forum. A jury might well be
entrusted with the latter ; while the former should meet
its appropriate trial and punishment before the senate.
If it should be asked, why separate trials should thus
be successively had ; Bnd why, if a conviction should
take place in a court of law, that court might not be en-
trusted vnth the power to pronounce a removal from
office, and the disqualification to office, as a part of its
sentence, the answer has been already given in the
1 Rawle on the Constitution, ch. 22, p. 217; 2 Woodeson, Lect 40, p.
608 609
s' Com. Dig. Parliament, L. 28 to 39 ; 2 Woodeson, Lect 40, p. 619,
620.
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254 CONST ITUTIOK OF THE 17. STATES. [bOOK in.
reasoning against vesting any court of law with merdjr
political functions. In the ordinary course of the ad-
ministration of criminal justice^ no court is authorized
to remove, or disqualify an offender, as a part of its
regular judgment If it results at all, it results as a
consequence, and not as a part of the sentence. But
it may be properly urged, that the vesting of such a
high and delicate power, to be exercised by a court of
law at its discretion, would, in relation to the distin-
guished functionaries (^ the govemi&ent, be peculiarly
unfit and inexpedient What could be more embar*^
rassing, than for a court of law to pr(Miounce for a re«
moval upon the mere ground of pditicai usurpation, or
malversation in office, admitting of endless varieties^
from the slightest guilt up to the most flagrant corrup-
ti(Mi? Ought a president to be removed from office at
the mere will of a court for political misdemeanours 1
Is not a political body, like the senate, fix)m its superior
information in regard to executtre fimctions, br better
qualified to judge, how far the public weal might be
promoted by such a punishment in a given case, than a
mere juridical tribunal? Suppose the senate should
still deem the judgment irregular, or unjustifiaUe, how
is the removal to take effect, and how is it to be en-
forced? A separation of the removing power alto-
gether from the appointing power might create many
pl*actical difficulties, which ought not, except upon the
most urgent reasons, to be mtroduced into matters of
government Without attempting to maintain, that the
difficulties would be insuperable, it is sufficient to sbowy
that they might be highly inconvenient in practice.
§ 785. It does not appear fix)m the Journal of the
Convention, that the provision thus limiting the sen-
tence upon impeachments to removal and disqualifica-
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OB. X.] TH£ 8EI7ATB. 265
tkm ix>in office, attracted much attention, until a late
period of its deliberations.^ The adoption of it was not,
howerer, without some difference of opinion; for it
passed only by the vote of seven states against three.'
The reasons, on which this exposition was founded, do
not appear ; and in the state conventbns no doubt of
the propriety o[ the provision s^ms to have been seri-
ously entertained.
^ 786. In order to complete our review of the con-
stitutional provisions cm the subject of impeachmeuts,
k is necessary to ascertain, who are the persons liable
to be impeached ; and what are impeachable offences.
By some strange inadvertence, this part of the consti-
tution has been taken from its natural connexion, and
with no great propriety arranged under that head, which
embraces the oiganization, and rights, and duties of the
esecttdve department. To prevent the necessity of
agab recurring to this subject, the general method pre^
scribed in these commentaries will, in this instance, be
departed from, and the only remaining provision on
impeachments be here introduced.
^ 787. The fourth section of the second article is a»
Mows: **The president, vice-president, and all civil
** officers of the United States, shall be removed from
^office on isppeachment for, and conviction of, treason,
•*lMibery, or other high crimes and misdemeanours.*"
§ 788. From this clause it appears, that the remedy
> Jotmial of the Convention, p. 227, 308, 36a
» Joonial of the Convention, p, 227, 902. See 3 Elliot's Debates, 4a
to 46; Id. 53 to 57 ; Id. 107, 108.
3 In the contention, the clause, making the president liable to removal
from ofice •» hnpeachroent and conviction, was not unanimously a§preod
to ; but patted by a vote of eight states against two.*
• JoonuLl of C«iveatkm»p. 94, lM,7lh
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256 CONSTITUTION OF THE U. STATES. [bOOK I1I«
by impeachment is strictly confined to civil oflScers of
the United States, including the president and vice-
presidenL In this respect, it differs materially from the
law and practice of Great-Britain. In that kingdom,
all the king's subjects, whether peers or commoners,
are impeachable in parliament ; though it is asserted,
that commoners cannot now be impeached for capital
offences, but for misdemeanours only.^ Such kind of
misdeeds, however, as peculiarly injure the common-
wealth by the abuse of high offices of trust, are the most
proper, and have been the most usual grounds for this
kind of prosecution in parliament.' There seems a pe-
culiar propriety, in a republican government at least, in
confining the impeaching power to persons holding
office. In such a government all the citizens are equal,
and ought to have the same security of a trial by jury
for all crimes and offences laid to their charge, when not
holding any official character. To subject them to im-
peachment would not only be extremely oppressive and
expensive, but would endanger their lives and liberties,
by exposing them against their wills to persecution for
their conduct in exercising their political rights and privi-
leges. Dear as the trial by jury justly is in civfl cases,
its value, as a protection against the resentment and
violence of rulers and factions in criminal prosecutions,
makes it inestimable. It is there, and there only, that
a citizen, in the sympathy, the impartiality, the intelli-
gence, and incorruptible integrity of his fellows, impan-
elled to try the accusation, may indulge a well-founded
confidence to sustain and cheer him. If he should choose
1 4 Black. Corom. 260, and Christian's note ; 2 Woodeson, I^ct. 4(V
p. 601, &c. ; Com. Dig, ParliameDt, L. 28 to 40.
9 2 Woodeson, Lect 40, p. 601, 602.
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CH. X.] THJ& 8£NAT£. 257
to accept oflSce, he would voluntarily incur all the addi-
tional responsibility growing out of iL If impeached
for his conduct, while in office, he could not justly com-
plain, since he was placed in that predicament by his
own choice ; and in accepting oflSce he submitted to all
the consequences. Indeed, the moment it was decid-
ed, that the judgment upon impeachments should be
limited to removal and disqualification from office, it
followed, as a natural result, that it ought not to reach
any but officers of the United States. It seems
to have been the original object of the friends of the
national government to confine it to these limits ; for in
the original resolutions proposed to the convention, and
in all the subsequent proceedings, the power was ex-
pressly limited to national officers.^
^ 789. Who are "civil officers,'' within the meaning
of this constitutional provision, is an inquiry, which natu-
rally presents itself; and the answer cannot, perhaps^
be deemed setded by any solemn adjudication. The
term "civil" has various significations. It is some-
times used in contradistinction to barbarous, or savage,
to indicate a state of society reduced to order and reg-
ular government. Thus, we speak of civil life, civil
society, civil government, and civil liberty ; in which it
is nearly equivalent in meaning to political^ It is some-
times used in contradistinction to criminal, to indicate
the private rights and remedies of men, as members of
the community, in contrast to those, which are public,
and relate to the government. Thus, we speak of
civil process and crimmal process, civil jurisdiction and
I Journal of Convention, 69, 121, 137, 226.
9 Johnson's Dictionary, CivU ; 1 Black. Comm. 6, 125, 251 ; Montesq.
Spirit of Laws, B. 1, ch. 3 ; Rutherforth's Inst B. 2, ch. 2, p. 23 ; Id.
ch. 3, p. 52; Id. cb. 8, p. 359 ; Heinec. Elem. Juris. Nat. B. 2, ch. 6.
VOL. IL 33
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266 coirsTiTUTioN or the u. states, [book hi.
criminal jurisdiction. It is sometimes used in contra-
distinction to military or ecclesiasticcUy to natural or
foreign. Thus, we speak of a civil station, as opposed
to a military or ecclesiastical station ; a civil death, as
opposed to a natural death ; a civil war, as opposed to a
foreign war. The sense, in which the term is used in
the constitution, seems to be in contradistinction to mili-
tart/f to indicate the rights and duties relating to citi-
zens generally, in contradistinction to those of persons
engaged in the land or naval service of the govern-
ment. It is in this sense, that Blackstone speaks of
the laity in England, as divided into three distinct
states ; the civil, the military, and the maritime ; the
two latter embracing the land and naval forces of the
government^ And in the same sense the expenses of
the civil list of oflScers are spoken of, in contradistinc-
tion to those of the army and navy.*
§ 790. All oflScers of the United States,^ therefore,
who hold their appomtments under the national govern-
ment, whether their duties are executive or judicial, in
the highest or in the lowest departments of the gov-
ernment, with the exception of oflScers in the army
and navy, are properly civil oflScers withm the meaning
of the constitution, and liable to impeachment' The
reason for exceptmg military and naval oflScers is, that
they are subject to trial and punishment according to
a peculiar military code, the laws, rules, and usages of
war. The very nature and eflSciency of military duties
and discipline require this summary and exclusive ju-
risdiction ; and the promptitude of its operations are
not only better suited to the notions of military men ;
1 1 Black. Coram. 396, 408, 417 ; De Lolme, B. 2, ch. 17, p- 446.
« 1 Black. Coram. 332.
3 Rawle on the Constitution, ch. 22, p. 213.
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CH. X.] TUfi SENATE. 960
but they deem their honour and their reputation more
safe in the hands of their brother ojfBcers, than in any
meijely civil tribunal Indeed, in military and naval
affairs it is quite clear, that the senate could scarcely
possess competent knowledge or experience to decide
upon the acts of miUtary n>en ; so much are these acts
to be governed by mere usage, and custom, by military
discipline, and military discretion, that the constitution
has wisely committed the whole trust to the decision
of courts-martiaL
^791. A question arose upon an impeachment be-
fore the senate in 1799, whether a senator was a civil
officer of the United States, within the purview of the
constituiton ; and it was decided by the senate, that he
was not ; ^ and the like principle must apply to the
members of the house of representatives* This decision,
upon which the senate itself was gready divided, seems
not to have been quite satisfactory (as it may be gath-
ered) to the minds of some learned commentators.'
The reasoning, by which it was sustained in the senate,
does not appear, their deliberations having been private.
But it was probably held, that " civil officers of the
United States '' meant such, as derived their appoint-
ment from, and under the national government, and not
those persons, who, though members of the government^
derived their appointment from the states, or the peo-
ple of the states. In this view, the enumeration of the
president and vice president, as impeachable officers,
was indispensable; for they derive, or may derive, their
1 The decision was made by a vote of 14 against 11. See Senata
Journal, 10 January, 1799 ; 4 Tuck. Black. Comm. App. 57, 58 ; Rawle
on Const, ch. 22, p. 213, 214.
• 4 Tuck. Black. Coram. App. 57, 58 ; Rawle on the Const ch. 22>
p. 213, 214, 218, 219. ^
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260 CONSTITUTION OF THE U. STATES. [BOOK III.
office from a source paramount to the national govern-
ment. And the clause of the constitution, now xmder
consideration, does not even affect to consider them
officers of the United States. It says, " the jwesident,
vice-president, and all civil officers (not all other civil
officers) shall be removed,^' &c. The language of the
clause, therefore, would rather lead to the conclusion,
that they were enumerated, as contradistinguished
from, rather than as included in the description of, civil
officers of the United States. Other clauses of the
constitution would seem to favoiu* the same result;
particularly the clause, respecting appointment of offi-
cers of the United States by the executive, who is to
** commission all the officers of the United States;" and
the 6th section of the first article, which declares, that
^ no person, holding any office under the United Stales^
** shall be a member of either house during his contin-
** uance in office ; ^ and the first section of the second
article, which declares, that " no senator or representa-
** tive, or person holding an office of trust or profit
** under the United States, shall be appointed an elect-
**or.'' * It is far from being certain, that the convention
itself ever contemplated, that senators or representa-
tives should be subjected to impeachment ; * and it is
very far from being clear, that such a subjection would
have been either politic or desirable.
§ 792. The reasoning of the Federalist on this sub-
ject, in answer to some objections to vesting the trial of
impeachments in the senate, does not lead to the con-
clusion, that the learned author thought the senators
liable to impeachment. Some parts of it would rather
1 See Blount's Trial, p. 34, 3*5 ; Id. 49, 50, 51, 52.
« But see South-Carolina Debates on the Constitution, January, 1788,
(printed in Charieston, 1831,) p. 11, 12, la
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CH. X.] THE SEITATE. 261
incline the Other way. "The convention might tcith
proprietyj^ it is said, " have meditated the punishment of
the executive for a deviation from the instructions of
the senate, or a want of integrity in the conduct of the
negotiations committed to him. They might also have
had in view the punishment of a few leading individuals
in the senate, who should have prostituted their influ-
ence in that body, a3 the mercenary instruments of
foreign corruption. But they could not with more, or
with equal propriety, have contemplated the impeach-
ment and punishment of two- thirds of the senate, con-
senting to an improper treaty, than of a majority of
thaty or of the other branch of the legislature, consenting
to a pernicious or unconstitutionaJ law; a principle^
which I believe has never been admitted into any govern-
menty^ &LC. "And yet, what reason is there, that a
majority of the house of representatives, sacrificing the
interests of the society by an unjust and tyrannical act
of legislation, should escape with impunity, more than
two-thirds of the senate sacrificing the same interests
in an injurious treaty with a foreign power? The truth
is, that in all such cases, it is essential to the freedom,
and to the necessary independence of the deliberations
of the body, that the members of it should be exempt from
punishment for acts done in a collective capacity ; and
thesecurity to the society must depend on the care, which
is taken, to confide the trust to proper hands ; to make it
their interest to execute it with fidelity ; and to make
it as diflScult, as possible, for them to combine in any
interest, opposite to that of the public good." * And it
is certsdn, that in some of the state conventions the
members of congress were admitted by the friends of
1 The Federalist, No. m.
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262 CONSTITUTION OF THE V. STATES. [bOOK lU.
the constitution, not to be objects of the unpeaching
power.^
^ 793. It may be admitted, that a breach of duty is
as reprehensible in a legislator, as in an executive, or
judicial officer ; but it does not follow, that the same
remedy should be applied in each case; or that a
remedy applicable to the one may not be unfit, or in-
convenient in the other. Senators and representatives
are at short periods made responsible to the people,
and may be rejected by them. And for personal
offences, not purely political, they are responsible to
the common tribunals of justice, and the laws of. the
land. If a member of congress were liable to be im-
peached for conduct in his legislative capacity, at the
will of a majority, it might furnish many pretexts for an
irritated and predominant faction to destroy the char-
acter, and intercept the influence of the wisest and
most exalted patriots, who were resistmg their oppres-
sions, or developing their profligacy. It is, therefore,
with great reason urged, that a legislator should be
. above all fear and influence of this sort in his public
conduct The imf>eachment of a legislator, for his
official acts, has hitherto been unacknowledged, as mat-
ter of right, in the annalsQf England )aid America. A
silence of this sort is conclusiv^las to the state of pub-
lic opinion in relation to the impolicy and danger of con-
ferring the power.* j^ ^^^ ^
§ 794. The next inquiry is, what are impeachable of-
fences? They are "treason, bribery, or other high crimes
and misdemeanours." For the definition of treason,
1 3 Elliot's Debates, 43, 44, 45, 46, 56, 57.
2 The arguments ofcounhp], for and against a senator's being an im-
peachable officer, will be found at lar^e, in the printed trial of William
Blount, on his impeachment (Pbilad. 1799.)
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CH« X.] THE 8ENAT£. 263
resort may be had to tHe constitution itself ; biit for the
definition of bribery, resort is naturally and necessarily
had to the common law ; for that, as the common basis of
our jurisprudence, can alone furnish the proper expo-
sition of the nature and limits of this ofience. The
only practical question is, what are to be deemed high
crimes and misdemeanours ? Now, neither the constitu-
tion, nor any statute of the United States has in any
manner defined any crimes, except treason and bribery,
to be high crimes and misdemeanours, and as such im-
peachable. In what manner, then, are they to be ascer-
tained 1 Is the silence of the statute book to be deemed
conclusive in favour of the party, until congress have
made a legislative declaration and enumeration of the
ofiences, which shall be deemed high crimes and mis-
demeanours 1 If so, then, as has been truly remarked,*
the power of impeachment, except as to the two ex-
pressed cases, is a complete nullity ; and the party is
wholly dispunishable, however enormous may be his
corruption or criminality.* . It will not be sufficient to
say, that in the casjes, where any offence is punished by
any statute of the United States, it may, and ought to
be, deemed an impeachable offence. It is not every
1 Rawle on the Constitution, ch. 29, p. 273.
3 Upon the trial of Mr. Justice Chase, in 1805, it was contended in
his answer and defence, that no civil officer was impeachable, but " for
treason, bribery, corruption, or some high crime or misdemeanour, cofi'
sisting in some ad done or omitted, in violation of lauf, forbidding or
commanding it" " Hence it clearly results, that no civil officer of the
United States can be impeached, except for some offence, for which he
may be indicted at law; and that no evidence can be received on an
impeachroent, except such, as, on an indictment at law for the same of-
fence, would be admissible." * The same doctrine was insisted on by
his counsel, f
* 1 Chaie's Trial, p. 47, 48.
t S Chaie's Trial, p. 9 to 18 ; 4 Elliot's Debates, 963.
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264 CONSTITUTION OF THE U. STATES. [BOOK III.
offence, that by the constitution is so impeachable. It
must not only be an offence, but a high crime and mis-
demeanour. Besides ; there are many most flagrant
offences, which, by the statutes of the United States, are
punishable only, when committed in special places, and
within peculiar jurisdictions, as, for instance, on the high
seas, or in forts, navy -yards, and arsenals ceded to the
United States. Suppose the offence is committed in
some' other, than these privileged places, or under cir-
cumstances not reached by any statute of the United
States, would it be impeachable 7
^ 795. Again, there are many offences, purely polit-
ical, which have been held to be within the reach of
parliamentary impeachments, not one of which is in the
slightest manner alluded to in our statute book. And,
indeed, political offences are of so various and complex
a character, so utterly incapable of being defined,
or classified, that the task of positive legislation would be
impracticable, if it were not almost absurd to attempt
it What, for instance, could positive legislation do in
cases of impeachment like the charges against Warren
Hastings, in 1788? Resort, then, must be had either
to parliamentary practice, and the common law, in
order to ascertain, what are high crimes and misdemean-
ours ; or the whole subject must be left to the arbitrary
discretion of the senate, for the time being. The latter
is so incompatible with the genius of our institutions,
that no lawyer or statesman would be inclined to coun-
tenance so absolute a despotism of opinion and practice,
which might make that a crime at one time, or in one
person, which would be deemed innocent at another
time, or m another person. The only safe guide in
such cases must be the common law, which is the
guardian at once of private rights and public liberties
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CH. X.] THE SENATE. 265
And however much it may fall in with the political the-
ories of certadn statesmen and jurists, to deny the exist-
ence of a common law belonging to, and applicable to the
nation m ordinary cases, no one has as yet been bold
enough to assert, that the power of impeachment is
limited to oflfences positively defined in the statute book
of the Union, as impeachable high crimes and misde-
meanours.
§ 796. The doctrine, indeed, would be truly alarm-
ing, that the common law did not regulate, interpret,
and control the powers and duties of the court of im-
peachment What, otherwise, would become of the rules
of evidence, the legal notions of crimes, and the appli-
cation of principles of public or municipal jurisprudence
to the charges against the accused? It would be a
, most extraordinary anomaly, that while every citizen of
every state, originally composing the Union, would be
entitled to the common law, as his birth-right, and at once
his protector and guide ; as a citizen of the Union, or
an officer of the Union, he would be subjected to no
law, to no principles, to no rules of evidence. It is the
boast of English jurisprudence, and without it the power
of impeachment would be an intolerable grievance, that
in trials by impeachment the law differs not m essentials
from criminal prosecutions before mferior courts. The
«ame rules of evidence, the same legal notions of crimes
and punishments prevail. For impeachments are not
framed to alter the law; but to carry it into more effectual
execution, where it might be obstructed by the influence
of too powerful delinquents, or not easily discerned in
the ordinary course of jurisdiction, by reason of the
peculiar quality of the aJleged crimes.^ Those, who
1 2 WoodesoD, Lect 40, p. 611, 613 ; 4 Black. Comm. 261, ChrLstion's
note, (2.)
VOL. II, 34
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266 coNSTiTUTioir or the u. states, [book ni.
believe, that the common law, so far as it is applicable,
constitutes a part of the law of the United States in
then* sovereign character, as a nation, not as a source
of jurisdiction, but as a guide, and check, and expositor
in the administration of the righ'ts, duties, and jurisdic-
tion conferred by the constitution and laws, will find no
difficulty in affirming the same doctrines to be applica-
ble to the senate, as a court of impeachments. Those,
who denounce the common law, as having any applica-
tion or existence in regard to the national government,
must be necessarily driven to maintain, that the power
of impeachment is, until congress shall legislate, a mere
nullity, or that it is despotic, both in its reach, and in its
proceedings.^ It is remarkable, that the first congress,
assembled in October, 1774, in their famous declara-
tion of the rights of the colonies, asserted, " that the
respective colonies are entitled to the common law of
England;** and "that they are entitled to the benefit
of such of the English statutes, as existed at the time
of their colonization, and which they have by experi-
ence respectively found to be applicable to their seve-
ral local and other circumstances." * It would be sin-
gular enough, if, in framing a national government, that
common law, so justly dear to the colonies, as their
guide and protection, should cease to have any exist-
1 It is DOt my desigD in this place to enter upon the discussion of the
much controverted question, whether the common law constitutes a part
of the national jurisprudence, in contradistinction to that of the states.
The learned reader will find the subject amply discussed in the works,
to which he has been already referred, viz. 1 Tuck, filack. Comm. App.
Note E. p. 378, &c. ; in the Report of the Virginia Legislature of 1799,
1800 ; in Rawle on the Constit ch. 90, p. 258, &.C., and in Duponceau on
Jurisdiction, and the authorities there cited. J Kent. Comm. Lect 16,
p. 31 1 e< seq, ; North American Review, July, 1825 ; Mr. Bayard's Speech,
Debate on the Judiciary in 1802, p. 372.
9 1 Journal of Congress, Oct 1774, p. 29.
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CH. X.] THE SENATE. 267
ence, as applicable to the powers, rights, and privileges
of the people, or the obligations, and duties, and pow-
ers of the departments of the national government. If
the common law has no existence, as to the Union, as
a rule or guide, the whole proceedings are completely
at the arbitrary pleasure of the government, and its
functionaries in ail its departments.
§ 797. Congress have unhesitatingly adopted the
conclusion, that no previous statute is necessary to
authorize an impeachment for any official misconduct ;
and the rules of proceeding, and the rules of evidence,
as well as the principles of decision, have been uni-
formly regulated by the known doctrines of the com-
mon law and parliamentary usage. In the few cases of
impeachment, which have hitherto been tried, no one
of the charges has rested upon any statutable misdemea-
nours.^ It seems, then, to be the settled doctrine of
the high court of unpeachment, that though the com-
mon law cannot be a foundation of a jurisdiction not
given by the constitution, or laws, that jurisdiction,
wh^i given, attaches, and is to be exercised according
to the rules of the common law ; and that, what are, and
what are not high crimes and misdemeanours, is to be as-
certained by a recurrence to that great basis of Ameri-
can jurisprudence.* The reasoning, by which the
1 It may be supposed, that the first charge Id the articles of impeach-
ment against William Blount was a statutable ofTence ; but on an ac-
curate examination of the act of congress, of 1794, it will be found not
to have been so.
s See Jefferson^s Manual, § 59, title, Impeachment ; Blount's Trial on
Impeachment, p. 29 to 31 ; Id. 75 to 80, (Philadelphia, 1799.) But see
Id. p. 42 to 46. — In another clause of the constitution power is given to
the president to grant reprieves and pardons for offences agaimt the
United States, except in cases of impeachment ; thus showing, that im-
peachable offisnces are deemed offences against the United States. If
the senate may then declare, what are ofibnces against the United
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268 CONSTITUTIOri of the U. states, [book III.
power of the house of representatives to punish for
contempts, (which are breaches of privUeges, and offen-
ces not defined by any positive laws,) has been upheld
by the Supreme Court, stands upon similar grounds ;
for if the house had no- jurisdiction to punish for con-
tempts, until the acts had been previously defined, and
ascertained by positive law, it is clear, that the process
of arrest would be illegal^
§ 798. In examining the parliamentary history of
impeachments, it will be found, that many offences, not
easily definable by law, and many of a purely political
character, have been deemed high crimes and misde-
meanours worthy of this extraordinary remedy. Thus,
lord chancellors, and judges, and other magistrates,
have not only been impeached for bribery, and acting
grossly contrary to the duties of their office; but for
misleading their sovereign by unconstitutional opinions,
and for attempts to subvert the fundamental laws, and
introduce arbitrary power.* So, where a lord chan-
cellor has been thought to have put the great seal to an
ignominious treaty ; a lord admiral to have ne^ected
the safe-guard of the sea ; an ambassador to have be-
trayed his trust ; a privy counsellor to have propound-
ed, or supported pernicious and dishonom*able mea-
sures ; or a confidential adviser of his sovereign to have
obtained exorbitant grants, or incompatible employ-
ments;— these have been all deemed impeachable
States by recurrence to the common law, why may not the courts of the
United States, under the express delegation of jurisdiction over ^ all
crimes and offences cognizable under the authority of the United States,**
by the act of 1789, ch. 20, § 11, act in the same manner ?
1 Dunn V. Jbider^wfi, 6 Wh«at R. 204 ; Rawle on Constit ch. 99,
p. 271, -^72.
s 2 Woodeeon, Lecrt. 40, p. 602; Com. Dig. title PaWiamen<, L. 28 to
40.
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CH. X.} THE 8£NATfi. 269
offences,* Some of the offences, indeed, for which
persons were impeached m the early ages of British
jurisprudence, would now seem harsh and severe ; but
perhaps they were rendered neqessaryby existing cor-
ruptions, ^and the importance of suppressing a spirit of
favouritism, and court intrigue. . Thui^ persons have
been impeached for givmg bad counsel to the king ; ad-
vising a prejudicial peace; enticing the king to act
against the advice of pariiament ; purchasing offices i
giving medicine to the king without advice of physi-
cians ; preventing other persons from giving counsel to
the king, except in their presence ; and procuring ex-
orbitant personal grants from the king.^ But others,
again, were founded in the most salutary public justice ;
such as impeachments for malversations and neglects
in office ; for encouraging pirates ; for official oppres-
sion, extortions^ and deceits ; and especially for putting
good magistrates out of office, and advancing bad.*
One cannot, but be struck, in this slight enumeration,
with the utter unfitness of the common tribunals of
justice to take cognizance of such offences ; and with
the entire propriety of confiding the jurisdiction over
them to a tribunal capable of understanding, and re-
forming, and scrutinizing the polity of the state,^ and of
sufficient dignity to mamtain the independence and
reputation of worthy public officers.
§ 799. Another mquiry, growing out of this subject,
is, whether, under the constitution, any acts are im-
peachable, except such, as are committed under col-
our of office ; and whether the party can be impeached
1 2 WoodesoD, Lect. 40, p. 602 ; Com. Dig. Parliament, L. 28 to 40.
« Com. Dig. Parliament, L. 28 to 40.
9 Com. Dig. Parliament, L. 28 to 40.
< 2 Woodeeon, Lect 40, p. 602.
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270 CONSTITUTlOlf OF THE U. STATES. [BOOK UU
therefor, after he has ceased to hold office. A learned
commentator seems to have taken it for granted, that
the liability to impeachment extends to all, who have
been, as well as to all, who are in public office.^ Upon
the other point his language is as follows : ^^ The legiti-
mate causes of impeachment have been already briefly
noticed. They can have reference only to public char-
acter, and official duty. The words of the text are, * trea-
son, bribery, and other high crimes and misdemeanours.'
The treason contemplated must be against the United
States. In general, those offences, which may be ccwn-
mitted equally by a private person, as a public officer,
are not the subjects of impeachment. Murder, bur-
glary, robbery, and indeed all offences not immediately
connected with office, except the two expressly men-
tioned, are left to the ordinary course of judicial pro-
ceed'mg ; and neither house can regularly inquire mto
them, except for the purpose of expelling a member.'' *
§ 800. It does not appear, that either of these points
has been judicially settled by the court having, proper-
ly, cognizance of them. In the case of William Blount,
the plea of the defendant expressly put both of them,
as exceptions to the jurisdiction, alleging, that^ at the
time of the impeachment, he, Blount, was not a sen-
ator, (though he was at the time of the charges laid
agamst him,) and that he was not charged by the arti-
cles of impeachment with having committed any crime,
or misdemeanour, in the execution of any civil office
held under the United States ; nor with any malccm-
duct in a civil office, or abuse of any public trust in the
1 Rawle on Conatit ch. 22, p. 213 ; Blount's Trial, p. 49, 50, (PhUadel-
phia, 1799.)
> Rawle on the Constitution, ch. 22, p. 215.
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CH. X.] THE SENATE. 271
execution thereof,* The decision, however, turned
upon another point, viz., that a senator was not an
impeachable officer,*
^801. As it is declared in one clause of the
constitution, that "judgment, in cases of imperch-
"ment, shall not extend further, than a removal
" fix^m office, and disqualification to hold any office of
** honour, trust, or profit, under the United States ; ^
and in another clause, that " the president, vice presi-
** dent, and all civil officers of the United States, shall
"be removed fi^om office on impeachment for, and con*
" viction oi, treason, bribery, or other high crimes or
"misdemeanoiu^;'* it would seem to follow, that the
senate, on the conviction, were bound, in all cases, to
enter a judgment of removal from office, though it has
a discretion, as to inflicting the punishment of disquali-
fication.' Ifi then, there must be a judgment of re-
moval fix>m office, it would seem to follow, that the
constitution contemplated, that the party was still in
office at the time of the impeachment. If he was not^
his offence was still liable to be tried and punished in
the ordinary tribunals of justice. And it might be
argued with some force, that it would be a vain exer*
cise of authority to try a delinquent for an impeachable
offence, when the most important object, for which the
remedy was given, was no longer necessary, or attaina-
ble. And although a judgment of disqualification might
still be pronounced, the language of the constitution
1 See Senate Journal, 14th Jan. 1799 ; 4 Tucker's Black. Comm.
App. 57, 58.
^ Sergeant on Const Law, ch. 39, p. 363.
9 Upon the impeachment and conviction of John Pickering (12th of
March, 1804,) the only punishment awarded by the senate was a removal
from office. See also Blount*s Trial, 64 to 66 ; Id. 79, 82» 83, (Philad.
1799*;) Sergeant on Const Law, ch. 29, p. 364.
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272 CONSTITUTIOir op the U. states, [book III.
may create some doubt, whether it can be pronoimced
without bemg coupled with a removal from office.^
There is also much force in the remark, that an impeach-
ment is a proceeding purely of a political nature. It is
not se much designed to punish an offender, as to secure
the state against gross official misdemeanors^ It touch-
es neither his person, nor his property ; but simply
divests him of his political capacity.*
. § 802. The other point is one of more difficulty. In
the argument upon Blount^s impeachment, it was press-
ed with great earnestness, that there is not a syllable
m the constitution, which confines impeachments to offi-
cial acts, and it is against the plainest dictates of com-
mon sense^ that such restraint should be imposed upon
it Suppose a judge should countenance, or aid insur-
gents in a meditated conspiracy or insurrection against
the government This is not a judicial act ; and yet it
ought certainly to be impeachable. He may be called
upon to try die very persons, whom he has aided.'
Suppose a judge or other officer to receive a bribe not
connected with his judicial office ; could he be entitled
to any public confidence ? Would not these reasons
for his removal be just as strong, as if it were a case
of an official tribe ? The argimient on the other side
was, that the power of impeachment was strictly con-
fined to civU officers of the United States, and this ne-
cessarily implied, that it must be limited to malconduct
in office.*
1 See Blount's Trial, 47, 48 ; Id. 64 to 68, (Philad. 1799 ;) Id. 82.
» Mr. Bayard. Blount's Trial, 28, (PhUaJ. 1799.) See Id. 80, 81.
» Blount's Trial, 39, 40, (Phila. 1799 ;) Id. 80.
< Blount's Trial, 46 to 49 ; Id 62, 64 to 68, (Philadelphia, 1799.)
— Wniiam Blount was expelled from the senate a few days before
this impeachment, (being then a member,) ond on that occasion he was^
by a resolution of the senate,* declared to be '^ guilty of a Mgh mUdt-
* Yo««,95jNay, L
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CH. X.] TH£ BEJX^TX. 273
§ 803. It is not intended to express any opinion in
these commentaries, as to which is the true exposition
of the constitution on the points above stated. They
are brought before the learned reader, as matters still
subjudice^ the final decision of which may be reason-
ably left to the high tribunal, constituting the court of
impeachment, when the occasion shall arise.
§ 804. This subject may be concluded by a sum-
mary statement of the mode of proceeding in the in-
stitution and trial of impeachments, as it is of rare oc-
currence, and not governed by the formalities of the
ordinary prosecutions in courts at law.
§ 805. When, then, an officer is known or suspect-
ed to be guilty of malversation in office, some member of
the house of representatives usually brings forward a res-
olution to accuse the party, or for the appointment of a
committee, to consider and report upon the charges laid
against him. The latter is the ordinary course ; and
the report of the committee usually contains, if adverse
to the party, a statement of the charges, and recom-
mends a resolution, that he be impeached) therefor. If
the resolution is adopted by the house, a committee is
then appointed to impeach the party at the bar of the
senate, and to state, that (he articles against, him will be
exhibited in due time, and made good before the sen-
ate ; and to demand, that the senate take (^der for the
appearance of the party to answer to the impeach-
mtcmor entirely inconsistent with his public tnist and duty, as a senator."
The offence charged was not defined by any statute of the United
States. It was for an attempt to seduce an United States' Indian inter-
preter from his duty, and to alienate the affections and confidence of
the Indians from the public officers residing among them, &c. Journ.
of Senate, 8th July, 1797 ; Sergeant on Const. Law, ch. 28, p. 286, 287.
1 Com. Dig. ParliamerU, L. 20 ; 2 Woodeson, Lect 40, p. 603, 604 ;
Jefferson's Manual, sect 53.
VOL, 11. 35
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274 CONSTITUTION OF THE U. STATES. [BOOK III.
ment^ This being accordingly done, the senate signi-
fy their willingness to take such order ; and articles are
Aen prepared by a committee, under the direction of the
house of representatives, which, when reported to, and
approved by the house, are then presented in the like
manner to the senate ; and a committee of managers
are appointed to conduct the impeachment^ As soon
as the articles are thus presented, the senate issue a
process, summoning the party to appear at a given
di^r before them, to answer the articles.* The process
is served by the sergeant-at-arms of the senate, and
due return is made thereof under oath.
§ 806. The articles thus exhibited need not, and
indeed do not, pursue the strict form and accuracy of
an indictment^ They are sometimes quite general in
the form of the allegations ; but always contain, or
ought to contain, so much certamty, as to enable the
party to put himself upon the proper defence, and^so,
in case of an acquittal, to avail himself of it, as a bar to
another impeachment. Additional articles may be exhib-
ited, perhaps, at any stage of the prosecution.*
^ 807. When the return day of the process for
appearance has arrived, the senate resolve themselves
into a court of impeachment^ and the senators are at
that time, or before, solemnly sworn, or aflirmed, to do
impartial justice upon the impeachment, according to
the constitution and laws of the United States. The
1 Com. Dig. PaHiammtj L. 30; 2 Woodeaon, Lect 40, p. 603, 604 ;
Jefferson's Manual, sect 53.
s Com. Dig. PaHtament, L. 21 ; Jefferson's Manual, sect 53.
3 Com. Dig. Parlia$nefU, L. 14, 18, 19, 20 ; Jefferson's Manual,
sect 53.
<2 Woodeson, Lect 40, p. 605, 606 ; Com. Dig. Pofiiwwii^ L. 21 ;
Foster on Crown Law, 389, 39a
5 Rawle on Const ch. 22, p. 216.
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CH. X.] THE SfiKATE. 276
person impeached is then caUed to appear and answer
the articles. If he does not appear in person, or by
attorney, his default is recorded, and the senate may
proceed ex parte to the trial of the impeachment If
he does appear in person, or by attorney, his appear-
ance is recorded. Counsel for the parties are admit-
ted to appear, and to be heard upon an impeachment.^
§ 808. When the party appears, he is entided to be
furnished with a copy of the articles of impeachment,
and time is allowed him to prepare his answer thereto.
The answer, like the articles, is exempted from the
necessity of observing great strictness of form. The
parXy may plead, that he is not guilty, as to part, and
make a further defence, as to the residue ; or he may,
in a few words, saving all exceptions, deny the whole
charge or charges ; * or he may plead specially, in jus-
tification or excuse of the supposed ofiences, all the
circumstance attendant upon the case. And he is also
mdulged with the liberty of offering argumentative rea-
sons, as well as facts, against the charges in support,
and as part, of his answer, to repel them. It is usual to
give a full and particular answer separately to each
article of the accusation.'
§ 809. When the answer is prepared and given m,
the next regular proceeding is, for the house of repre-
sentatives to file a replication to the answer in writing,
in substance denying the truth and validity of the de-
fence stated in the answer, and averring the truth
and suflSciency of the charges, and the readiness of the
house to prove them at such convenient time and place,
1 Jefferson's Manual, sect 53.
« 2 Woodeson, Lect 40, p. 606, 607 ; Com. Dig. Parliament, L. 93.
> 2 Woodeson, Lect 40, p. 607 ; Jefferson's Manual, sect 53.
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276 CONSTITUTIOlf OF THE U. STATES. [bOOK III,
as shall be aj^inted for that purpose by the senate.^
A time is then assigned for the trial ; and the senate,
at that period or before, adjust the prelimmaries and
other proceedmgs proper to be had, before and at the
trial, by fixed regulations ; which are made known to
the house of representatives, and to the party accused,*
On the day appointed for the trial, the house of rep-
resentatives appear at the bar of the senate, either in a
body, or by the managers selected for that purpose, to
proceed with the trial.' - Process to compel the attend-
ance of witnesses is previously issued at the request of
either party, by order of the senate ; and at the time
and place appointed, they are bound to appear and
give testimony. On the day of trial, the parties being
ready, the managers to conduct the prosecution open
it on behalf of the house of representatives, one or
more of them delivering an explanatory speech, either
of the whole charges, or of one or more of them. The
proceedings are then conducted substantially, as they
are upon common judicial trials, as to the admission or
rejection of testimony, the exammation and cross-ex-
amination of witnesses, the rules of evidence, and the
legal doctrines, as to crimes and misdemeanours.^ When
the whole evidence has been gone through, and the
parties on each side have been fully heard, the senate
then proceed to the consideration of the case. If any
debates arise, they are conducted in secret ; if none
arise, or after they are ended, a day is assigned for a
final public decision by yeas and nays upon each sep-
arate charge in the articles of impeachment. When
the court is assembled for this purpose, the question is
1 See 2 Woodeson, Lect 40, p. 607 ; Com. Dig. ParHameni, L. 24.
3 See 3 Woodeson, Lect 40, p. 610.
3 Jefferson's Manual, sect. 53.
4 2 Woodeson, Lect. 611 ; Jefferson's Manual, sect 53.
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CH. X.] THE SENATE. 977
propounded to each member of the senate by name^
by the president of the senate, in the following man-
ner, upon each article, the same being first read by the
secretary'of the senate. " Mr. , how say you, is
the respondent guilty, or not guilty of a high crime and
misdemeanour, as charged in the article of im-
peachment?'' Whereupon the member rises in his
place, and answers guilty, or not guilty, as his opinion
is. If upon no one article two thirds of the senate de-
cide, that the party is guilty, he is then entitled to an
acquittal, and is declared accordingly to be acquitted
by the president of the senate. If he is convicted of
all, or any of the ^u'ticles, the senate then proceed to
fix, and declare the proper punishment.* The pardon-
ing power of the president does not, as will be pres-
ently seen, extend to judgments upon impeachment ;
and hence, when once pronounced, they become abso-
lute and U'reversible.^
^810. Havmg thus gone through the whole subject
of impeachments, it only remains to observe, that a
close survey of the system, unless we are egregiously
deceived, will completely demonstrate the wisdom of
the arrangements made in every part of it. The juris-
diction to impeach is placed, where it should be, in the
possession and power of the immediate representatives
of the people. The trial is before a body of great dig-
nity, and ability, and independence, possessing the
requisite knowledge and firmness to act with vigour,
^ This summary, when no othor authority is cited, has been drawn
up from the practice, in the cases of impeachment already tried by the
senate of the United States, viz. of William Blount, in 1798; of John
Pickering, in Ic04 ; of Samuel Chase, in 1804 ; and of James H. Peck,
in 1831. See the Senate Journals of those Trials. See also Jefferson's
Manual, sect. 202. ^
* Art 2f sect 2, clause, 1.
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278 COXSTITUTION OF THE F. STATES. [BOOK UI.
and to decide with impartiality upon the charges. The
persons subjected to the trial are oflScers of the nation-
al government ; and the offences are such, as may
affect the rights, duties, and relations of the party ac-
cused to the public in his political or official character,
either directly or remotely. The general rules of law
and evidence, applicable to common trials, are interpos-
ed, to protect the party against the exercise of wanton
oppression, and arbitrary power,r And the final judg-
ment is confined to a removal fi-om, and disqualification
for, office ; thus limiting the punishment to such modes
of redress, as are peculiarly fit for a political tribunal to
administer, and as will secure the public against politi-
cal injuries. In other respects the offence is left to be
disposed of by the common tribunals of justice, accord-
ing to the laws of the land, upon an indictment found
by a grand jury, and a trial by a jury of peers, before
whom the party is to stand for his final deliverance, like
his fellow citizens.
^811. In respect to the impeachment of the presi-
dent, and vice president, it may be remarked, that they
are, upon motives of high state policy, made liable to
impeachment, while they yet remain in office. In
England the constitutional maxim is, that the king can
do no wrong. His ministers and advisers may be im-
peached and punished ; but he is, by his prerogative,
placed above all personal amenability to the laws for
his acts.^ In some of the state constitutions, no expli-
cit provision is made for the impeachment of the chief
magistrate ; and in Delaware and Virginia, he was not
(under their old constitutions) impeachable, until he
was out of office.* So that no immediate remedy in
I 1 Black. Coinm. 246, 347. « The Federalist, No. 99.
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CH. X.] THE SENATE. 279
those states was provided for gross malversations and
corruptions in oflSce ; and the only redress lay in the
elective power, followed up by prosecutions after the
party had ceased to hold his office. Yet cases may be
imagined, where a momentary delusion might induce a
majority of the people to re-elect a corrupt chief mag-
istrate ; and thus the remedy would be at once distant
and uncertain. The provision in the constitution of
the United States, on the other hand, holds out a deep
and immediate responsibility, as a check upon arbitra-
ry power ; and compels the chief magistrate, as well
as the humblest citizen, to bend to the majesty of
the laws.
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280 ^ CONSTITUTION OF THE IT. STATES, f BOOK III.
CHAPTER XL
ELECTIONS AND MEETINGS OF CONGRESS.
§ 812. The first clause of the fourth section of the
first article is as follows : ^* The times, places, and man-
^ ner of holding elections for senators and representa-
** lives shall be prescribed in each state by the legisla-
^ ture thereof. But the congress may, at any time, by
**law, make or alter such regulations, except as to the
** place of choosmg senatoi^.*^
^813. This clause does not appear to have attracted
much attention, or to have encountered much opposi-
tion in the convention, at least so far, as can be gather-
ed from the journal of that body.* But it was afterwards
assailed by the opponents of the constitution, both in
and out of the state conventions, with uncommon zeal
and virulence. The objection was qot to that part of
the clause, which vests in the state legislatures the pow-
er of prescribing the times, places, and manner of hold-
ing elections ; for, so far, it was a surrender of power to
the state governments. But it was, to the superintend-
ing power of congress to make, or alter such regulations.
It was said, that such a superintending power would be
dangerous to the liberties of the people, and to a just
exercise of their privileges in elections. Congress
might prescribe the times of election so unreasonably,
as to prevent the attendance of the electors ; or the
place at so inconvenient a distance fi'om the body of
the electors, as to prevent a due exercise of the right
of choice. And congress might contrive the manner of
holding elections, so as to exclude all but their own
1 Journal of ConventioD, 318, 340 ; Id. 354, 374.
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CSL XI.] ELECTIONS. 281
favourites from office. They might modify the right of
election, as they please ; they might regulate,the number
of votes by the quantity of property, without involving
any repugnancy to the constitution.* These, and other
suggestions of a similar nature; calculated to spread ter-
ror and alarm among the people, were dwelt on with
peculiar emphasis.
§ 814. In answer to all such reasoning, it was urged,
that there was not a single article in the whole system
more completely defensible. Its propriety rested upon
this plain proposition, that every government ought to
contain, in itself the means of its own preservation.* If,
in the constitution, there were some departures from
this principle, (as it might be admitted there were,) they
•were matters of regret, and dictated by a controlling
moral or political necessity ; and they ought not to be
extended. It was obviously impracticable to frame, and
insert in the constitution an election law, which would
be applicable to all possible changes in the situation of
the country, and convenient for all the states. A dis-
cretionary power over elections must be vested some-
where. There seemed but three ways, in which it
could be reasonably organized. It might be lodged
either wholly m the national legislature ; or wholly m the
state legislatures ; or primarily in the latter, and ulti-
mately in the former. The last was the mode adopted
by the convention. The regulation of elections is
submitted, in the first instance, to the local govern-
ments, which, in ordinary cases, and when no improper
views prevail, may both conveniently and satisfactorily
1 1 Elliot's Debates, 43 to 50 ; Id. 53 to 68 ; 2 Elliot's Debates;38, 39.
72» 149, 150; 3 EHiot's Debates, 57 to 74 ; 2 American Museoim 438 ;
Id. 435; Id. 545; 3 American Museum, 423; 2 Elliot's Debates,
277.
9 The Federalist, No. 59 ; 2 EHiot's Debates, 276, 277.
VOL. II. 36
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^82 CONSTITUTION OF THIS U. STATES. [BOOK III.
be by them exercised. But, in extraordinary circum-
stances, the power is reserved to the national govern-
ment ; so that it may not be abused, and thus hazard the
safety and permanence of the Union.* Nor let it be
thought, that such an occurrence is wholly imaginary.
It is a known fact, that, under the confederation,
Rhode-Island, at a very critical period, withdrew her
delegates from congress ; and thus prevented some im-
portant measures from being carried.*
^815. Nothing can be more evident, than that an
exclusive power in the state legislatures to regulate
elections for the national government would leave the
existence of the Union entirely at thefr mercy. They
could, at any time, annihilate it, by neglecting to provide
for the choice of persons to administer its affairs. It is
no sufficient answer, that such an abuse of power is not
probablel Its possibility is, m a constitutional view,
decisive against taking such a risk ; and there is no ret-*
fion for taking it. The constitution ought to be safe
against fears of this sort ; and against temptations to
undertake such a project It is true, that the state legis*
latures may, by refusing to choose senators, interrupt
the operations of the national government, and thus in-
volve the country m general ruin. But, because, with
a view to the establishment of the constitution, this risk
was necessarily taken, when the appointment of sena-
tors was vested m the state legislatures ; still it did not
follow, that a power so dangerous ought to be conceded
m cases, where the same necessity did not exist On
the contrary, it became the duty of the convention, on
this very account, not to multiply the chances of mis-
chievous attempts of this sort The risk, too, would be
i The Federalist, No. 59 ; 2 ElUot'a Debates, 38, 39 ; Id. 276, 277.
t 1 £lUot'8 Debates, 44,45; The Federalist^ No. 22.
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CH. XI.] ELECTIONS. 283
much greater in regard to an exclusive power over the
elections of representatives, than over the appomtment
of senators. The latter are chosen for six years ; the
representatives for two years. There is a gradual ro*
tation of oflSce in the senate, every two years, of one
third of the body ; and a quorum is to consist of a mere
majority. The result of these circumstances would
naturally be, that a combination of a few states, for a
short period, to intermit the appointment of senators
would not in):errupt the operations or annihilate the ex-
istence of that body. And it is not against permanent^
but agamst temporary combinations of the states, that
there is any necessity to provide. A temporary com-
bination might proceed altogether from the sinister
designs and intrigues of a few leading members of the
state legislatures. A permanent combination could
only arise from the deep-rooted disaffection of a great
majority oi the people ; and, under such circumstances,
the existence of such a national government would
neither be desirable, nor practicable.* The very short-
ness of the period of the elections of the house of
representatives might, on the other hand, furnish means
and motives to temporary combinations to destroy the
national government; and every returning election
might produce a delicate crisis in our national affairs,
subversive of the public tranquillity, and encouraging to
every sort of faction.*
§ 816. There is a great distmction between the
objects and interests of the people, and the political
objects and interests of their rulers. The people may
be warmly attached to the Union, and its powers, and
its operations ; while their representatives, stimulated by
the natural rivalship of power, and the hopes of personal
1 The Federalist, No. 59. s id.
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284 CONSTITUTION OF THE V. STATES. [bOOK III.
aggrandisement, may be in a very opposite temper,
and artfully using all their influence to cripple, or de-
stroy the national government^ Their motives and
objects may not, at first, be clearly discerned ; but time
and reflection will enable the people to understand their
own true interests, and to guard themselves against
insidious factions. Besides ; there will be occasions,
in which the people will be excited to undue resent-
ments against the national government With so effec-
tual a weapon in their hands, as the exclusive power
of regulating elections for the national government, the
combination of a few men in some of the lai^e states
might, by seizing the opportunity of some casual dis-
affection among the people, accomplish the destruction
of the Union. And it ought not to be overlooked, that
as a solid government will make us more and more an
object of jealousy to the nations of Europe, so there
will be a perpetual temptation, on their part, to gene-
rate mtrigues of this sort for the purpose of subverting
it*
§ 817. There is, too, in the nature of such a provi-
sion, something incongruous, if not absurd. What would
be said of a clause introduced into the national consti-
tution to regulate the state elections of the members of
the state legislatures ? It would be deemed a most
unwarrantable transfer of power, indicating a premedi-
tated design to destroy the state governments.* It
would be deemed so flagrant a violation of principle, as
to require no comment It would be said, and justly,
that the state governments ought to possess the power
of self-existence and self-organization, independent of
1 The Federalist, No. 59; I Elliot's Debates, 43 to 55 ; Id. 67, 68 ;
3 Elliot's Debates, 65.
* The Federalist, No. 59. > Id.
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OH. XI.] ELECTIOHS. 286
the pleasure of the national government. Why does
not the same reasonmg apply to the national govern-
ment ? What reason is there to suppose, that the state
governments will be more true to the Union, than.the
national government will be to the state governments 1
^818. li, then, there is no peculiar fitness m dele-
gating such a power to the state legislatures ; if it might
be hazardous and inconvenient ; let us see, whether
there are any solid dangers from confiding the super-
intending and ultimate power over elections to the
national government There is no pretence to say,
that the power in the national government can be used,
so as to exclude any state from its share in the repre-
sentation in congress. Nor can it be said, with cor-
rectness, that congress can, in any way, alter the rights,
or qualifications of voters. The most, that can be urged,
with any show of argument, is, that the power might, in a
given case, be employed in such a manner, as to promote
die election of some favourite candidate, or favourite class
of men, in exclusion of others, by confining the places
of election to particular districts, and rendering it im-
practicable for the citizens at large to partake in the
choice. The whole argument proceeds upon a suppo-
sition the most chimerical. There are no rational cal-
culations, on which it can rest, and every probability is
against it. Who are to pass the laws for regulating
elections ? The congress of the United States, com-
posed of a senate chosen by the state legislatures, and
of representatives chosen by the people of the states.
Can it be imagined, that these persons will combine to
defraud their constituents of their rights, or to overthrow
the state authorities, or the state influence ? The very
attempt would rouse universal indignation, and produce
an immediate revolt among the great mass of the peo-
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ifS6 CONSTITUTION OF THE U. STATES. [BOOK UI.
pie, headed and directed by the state goyemments.^
And what motive could there be, in congress, to pro*
duce such results? The very dissimilarity m the
ingredients, composing the national government, forbid
even the supposition of any effectual combination for
such a purpose. The interests, the habits, the mstitu-
tions, the local employments, the state of property, the .
genius, and the manners, of the people of the different
states, are so various, and even opposite, that it would
be impossible to bring a majority of either house to
agree upon any plan of elections, which should favour
any particular man, or class of men, in any state. In
some states, commerce is, or may be, the predominant
interest ; in others, manufactures ; in others, agricul-
ture. Physical, as well as moral causes will necessarily
nourish, in different states, different mclinations and
propensities on all subjects of this sort. If there is any
class, which is likely to have a predominant influence^
it must be either the commercial, or the landed class.
If either of these could acquire such an influence, it is
infinitely more probable, that it would be acquired m
the state, than in the national, councils.^ In the latter,
there will be such a mixture of all mteresis, that it will
be impracticable to adopt any rule for all the states,
giving any preference to classes or interests, founded
upon sectional or personal considerations. What might
suit a few states well, would find a general resistance
fix>m all the other states.
» , § 819. If it is said, that the elections might be so
managed^ as to give a predominant influence to the
wealthy, and the well-bom, (as they are insidiously
called,) the supposition is not less visionary. What
possible mode is there to accomplish such a purpose 1
1 The Federalist, No. 60. mI
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CH. XI.] ELECTIOirS, 287
The wealthy, and the well-born are not confined to any
particular spots in any state ; nor are their mterests
permanently fixed any where. Their property may
consist of stock, or other personal property, as well as
of land ; of manufactories on great streams, or on nar-
row rivulets, or in sequestered dells. Their wealth
may consist of large plantations in the bosom of the
country, or farms on the borders of the ocean. How
vain must it be, to legislate upon the regulation of elec-
tions with reference to circumstances so infinitely
varied, and so infinitely variable. The very suggestion
is preposterous. No possible method of regulating the
time, mode, or place of elections, could give to the rich,
or elevated, a general, or permanent advantage in the
elections. The only practical mode of accomplishing
it, (that of a property qualification of voters, or candi-
dates,) is excluded in the scheme of the national govern-
ment.^ And if it were possible, that such a design
could be accomplished to the injury of the people at a
smgle election, it is certam, that the unpopularity of the
measure would immediately drive the members from
office, who aided in it ; and they would be succeeded by
others, who would more justly represent the public will
and the public interests. A cunning, so shallow, would
be easily detected ; and would be as contemptible from
its folly, as it would be difficult in its operations.
^ 820. Other considerations are entitled to great
weight The constitution gives to the state legislatures
the power to regulate the time, place, and manner of
holding elections ; and this will be so desirable a boon
in their possession, on account of their ability to adapt
the regulation, fi-om time to time, to the peculiar local,
or political convenience of the states, that its represen-
1 The Federalist, No. 60.
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288 CONSTITUTION OF THE V. STATES. [BOOK III.
tatives in congress will not be brought to assent to any
general system by congress, unless from an extreme
necessity, or a very urgent exigency. Indeed, the
danger rather is, that when such necessity or exigency
actually arises, the measure will be postponed, and
perhaps defeated, by the unpopularity of the exercise
of the power. All the states will, under common cir-
cumstances, have a local interest, and local pride, in
preventing any interference by congress ; and it is in-
credible, that this influence should not be felt, as well
in the senate, as in the house. It is not too much,
therefore, to presume, that it will not be resorted to by
congress, until there has been some extraordinary abuse,
or danger in leaving it to the discretion of the states
respectively. And it is no small recommendation of
this supervismg power, that it will naturally operate, as a
check upon undue state legislation; since the latter might
precipitate the very evil, which the popular opinion
would be most solicitous to avoid. A preventive of
this sort, addressed a priori to state jealousy, and state
interest, would become a most salutary remedy, not
fix>m its actual application, but from its moral influence.
§ 821. It was said, that the constitution might have
provided, that the elections should be in counties. This
was true ; but it would, as a general rule, afford very
litde relief agamst a possible abuse ; for counties differ
greatly in size, in roads, and in accommodations for
elections ; and the argument, 6rom possible abuse, is
just as strong, even after such a provision should be
made, as before. If an elector were compellable to go
thirty, or fifty miles, it would discourage his vote, as
much, as if it were one hundred, or five hundred miles.*
1 The Federalist, No. 61. — The full force of this reasoning will not
be perceived, without adverting to the fact, that though in New-England
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CH. XI.] ELECTIONS. 289
The truth is, that congress could never resort to a mea-
sure of this sort for purposes of oppression, or party
triumph, until that body had ceased to represent the
will of the states and the people ; and if, under such
circumstances, the members could still hold office, it
would be, because a general and hremediable corrup-
tion, or indifference pervaded the whole community.
No republican constitution could pretend to afford any
remedy for such a state of things.^
^ 822. But why did not a similar objection occur
against the state constitutions '? The subject of elec-
tions, the time, place, and manner of holding them, is
in many cases left entirely to legislative discretion. In
New-York, the senators are chosen from four districts
of great territorial extent, each comprehending several
counties ; and it is not defined, where the elections shall
be had. Suppose the legislature should compel aD the
electors to come to one spot in the district, as, for in-
stance, to Albany, the evil would be great ; but the
measure would not be unconstitutional.* Yet no one
practically entertains the slightest dread of such legis-
lation. In truth, all reasoning from such extreme pos-
sible cases is ill adapted to convince the judgment,
though it may alarm our prejudices. Such a legislative
discretion is not deemed an infirmity in the delegation
of constitutional power. It is deemed safe, because it
can never be used oppressively for any length of time,
the voters generally give their votes in the townships, where they reside.
In the southern and western states, there are few towns, and the elee*
tioDS are held in the counties, where the population is sparse, and spread
over large plantation districts.*
I 2 Elliot's Debates, 88, 39.
s The Federalist, No. 61.
* 1 KUiot*f Debates, 68.
VOL. II. 37
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290 CONSTITUTION OF THE U. STATES. [bOOK UI#
unless the people themselves choose to aid in their owa
degradation.
§ 823. The objections, then, to the provision are not
sound, or tenable. The reasons in its favour are, on
the other hand, of great force and importance. In the
first place, the power may be applied by congress to
correct any negligence in a state in regard to elections,
as well as to prevent a dissolution of the government
by designing and refractory states, urged on by some .
temporary excitements. In the next place, it will ope-
rate as a check in flavour of the people agamst any de-
signs of a federal senate, and their constituents, to de-
prive the people of the state of their right to choose
representatives. In the next place, it provides a rem-
edy for the evil, if any state, by reason of invaa^ion, or
other cause, cannot have it in its power to appoint a
place, where the citizens can safely meet to choose
representatives.^ In the last place, (as the plan is
but an experiment,) it may hereafter become important,
with a view to the regular operations of the general
government, that there should be a uniformity in the
time and manner of electing representatives and sena-
tors, so as to prevent vacancies, when there may be
calls for extraordinary sessions of congress. If su^h a
time should occur, or such a uniformity be hereafter
desirable, congress is the only body possessing the
means to produce it.*
^ 824. Such were the objections, and such was the
reasonmg, by which they were met, at the time of the
adoption of the constitution. A period of forty years
has since passed by, without any attempt by congress
1 See 1 Elliot's Debates, 44, 47, 48, 49 ; Id. 55; Id. 67.
s The Federalist, No. 61 ; 2 Elliot'^ Debates, 38, 39.
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cfi. xl] elections. 201
to make any regulations, or interfere in tbe slightest
degree with the elections of members of congress. If,
therefore, experience can demonstrate any thing, it is
the entire safety of the power in congress, which it is
scarcely possible (reasoning fix)m the past) should be
exerted, unless upon very urgent occasions. The states
now regulate the time, the place, and the manner of
elections, in a practical sense, exclusively. The manner
is very various ; and perhaps the power has been ex*
erted, in some instances, under the influence of local
or party feelings, to an extent, which is indefensible A
principle and policy. There is no uniformity in the
choice, or in the mode of election. In some states the
representatives are chosen by a general ticket for the
whole state ; in others they are chosen singly in dis-
tricts ; in others they are chosen in districts composed
of a population sufficient to elect two or three represent
tatives ; and in others the districts are sometimes sin«
gle, and sometimes united in the choice. In some
states the candidate must have a majority of all the
votes to entitle him to be deemed elected ; in others
(as it is in England) it is sufficient, if he has a plurality
of votes. In some of the states the choice is by the
voters tm?a voce^ (as it is in England;) in others it is
by ballot^ The times of the elections are quite as va-
rious ; sometimes before, and sometimes after the regu-
Iv period, at which the office becomes vacant. That
this want of uniformity, as to the time and mode of
election, has been productive of some inconveniences to
the public service, cannot be doubted ; for it has some-
times occurred, that at an extra session a whole state
has been deprived of its vote ; and at the regular ses-
1 1 Tucker's Black. Comin. App. l9fL
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292 CONSTITUTIOW OP THE U. STATES. [BOOK IIL
sions some districts have failed of being represented
upon questions vital to their interests. Still, so strong
has been the sense of congress of the importance of
leaving these matters to state regulation, that no effort
has been hitherto made to cure these evils ; and public
opinion has almost irresistibly settled down in favour of
the existing system.^
§ 825. Several of the states, at the time of adopting
the constitution, proposed amendments on this subject ;
but none were ever subsequently proposed by congress
to the people ; so that the public mind ultimately ac-
quiesced in the reasonableness of the existing provis-
ion. It is remarkable, however, that none of the
amendments proposed in the state conventions pur-
ported to take away entirely the superintending power
of congress ; but only restricted it to cases, where a
state neglected, refused, or was disabled to exercise
the power of regulating elections.*
i^ 826. It remains only to notice an exception to the
power of congress in this clause. It is, that congress
cannot alter, or make regulations, ^ as to the place of
choosing senators.'* This exception is highly reasona-
ble. The choice is to be made by the state legislature ;
and it would not be either necessary, or becoming in
congress to prescribe the place, where it should sit
This exception was not m the revised draft of the con-
stitution ; and was adopted almost at the close of the
convention; not, however, without some opposition, for
nine states were in its favour, one against it, and one
was divided.*
1 1 Tucker's Black. Comnu App. 191, 192.
9 See Journal of Convention, Supplement, p. 402, 411, 418, 425, 433,
447, 454.
^ Journal of Convention, 354, 374.
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CH. XI.] MEETINGS OF COXORESS. 29S
^ 827. The second clause of the fourth section of the
first article is as follows : "The congress shall assemble at
"least once in every year; and such meeting shall be on
" the first Monday in December, unless they shall by law
" appoint a different day." This clause, for the first time,
made its appearance in the revised draft of the constitution
near the close of the convention ; and was silently adopt-
ed, and, so far as can be perceived, without opposition.
Annual parliaments had been long a favourite opinion
and practice with the people of England ; and in Amer-
ica, under the colonial governments, they were justly
deemed a great security to public liberty. The pres-
ent provision could hardly be overlooked by a fi'ee
people, jealous of theh* rights ; and therefore the con-
stitution fixed a constitutional period, at which congress
should assemble in every year, unless some other day
was specially prescribed. Thus, the legislative discre-
tion was necessarily bounded; and annual sessions
were placed equaUy beyond the power of faction, and
.of party, of power, and of corruption. In two of the
states* a more frequent assemblage of the legislature
was known to exist. But it was obvious, that fi'om the
nature of their duties, and the distance of their abodes,
the members of congress ought not to be brought to-
gether at shorter periods, unless upon the most press-
ing exigencies. A provision, so universally acceptable,
requires no vindication, or commentary.*
^ 828. Under the Bridsh constitution, the king has
the sole right to convene, and prorogue, and dissolve
parliament. And although it is now usual for parlia-
ment to assemble annually, the power of prorogation
may be applied at the kmg's pleasure, so as to prevent
1 The Pederaliat, No. 52.
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904 CONSTITUTION OF THE V. STATES. [bOOK III.
any business from being done. And it is usual for the
king, when he means, that parliament should assemble
• to do business, to give notice by proclamation accord-
ingly ; otherwise a prorogation is of course on the first
day of the session.^
§ 829. The fifth section of the first article embraces
provisions principally applicable to the powers, rights,
and duties of each house in its separate corporate char-
acter. These will not require much illustration or com-
mentary, as they are such, as are usually delegated to
all legislative bodies in free governments ; and were in
practice in Great-Britain at the time of the emigration
of our ancestors ; and were exercised under the colonial
•governments, and have been secured and recognised
in the present state constitutions.
§ 830. The first clause declares, that **each bouse
** shall be the judge of the elections, returns, and quali-
" fications of its own members, and a majority of each
^ shall constitute a quorum to do business ; but a smaller
•* number may adjourn from day to day, and may be
** authorized to compel the attendance of absent mem-
** bers, in such manner, and under such penalties, as
**each house may provide.^
^831. It is obvious, that a power must be lodged
somewhere to judge of the elections, returns, and quali-
fications of the members of each house composing the
legislature ; for otherwise there could be no certainty,
as to who were legitimately chosen members, and any
intruder, or usurper, might claim a seat, and thus tram-
ple upon the rights, and privileges, and Uberties of the
people. Indeed, elections would, become, under such
1 1 Black. Comm. 187, 188, and Christian's Note ; 3 V^ilson's Law
Lect 154, 1^*
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CH. XI.] MEETINGS OF C0K6RE8S. 206
circumstances, a mere mockery; and legislation the
exercise of sovereignty by any self-constituted body.
The only possible question on such a subject is, as to
the body, in which such a power shall be lodged. If
lodged in any other, than the legislative body itself its
independence, its purity, and even its existence and
action may be destroyed, or put into imminent danger.
No other body, but itself, can have the same motives to
preserve and perpetuate these attributes; no other
body can be so perpetually watchful to guard its own
rights and privileges from infringement, to purify and vin-
dicate its own character, and to preserve the rights, and
sustain the free choice of its constituents. Accordingly,
the power has always been lodged in the legislative
body by the uniform practice of England and America.*
'^ 832. The propriety of establishing a rule for a
quorum for the despatch of business is equally clear ;
siacG otherwise the concerns of the nation might be
decided by a very smaU number of the members of
each body. In England, where the house of commons
consists of nearly six hundred members, the number of
forty-five constitutes a quorum to do business.^ In
some of the state constitutions a particular number of
the members constitutes a quorum to do business ; in
others, a majority is required. The constitution of the
United States has wisely adopted the latter course ;
and thus, by requiring a majority for a quorum, has
secured the public from any hazard of passing laws by
surprise, or against the deliberate opinion of a majority
of the representative body.
1 1 Black. Comm. 163, 178, 179; Rawle on tiie ConstitutioD^ ch. 4,
p. 46 ; 1 Kent Comm. 220 ; 2 Wilson's Law Lect 153, 154.
9 1 Tucker's Black. Comm. App. 201, 202^ 203, 229. — I have not been
able to find in any books within my reach, whether any particular quo-
rum is required in the house of lords.
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296 CONSTICPUTION OF THE 0. STATES. [BOOK III.
^ 833. It may seem strange, but it is only one of
many proofs of the extreme jealousy, with which every
provision in the constitution of the United States was
watched and scanned, that though the ordinary quo-
rum in the state legislatures is sometimes less, and
rarely more, than a majority; yet it was saicL that in
the congress of the United States more than a majority
ought to have been required ; and in particular cases,
if not in all, more than a majority of a quorum should
be necessary for a decision. Traces of this opinion,
though very obscure, may perhaps be found in the con-
vention itself.^ To require such an extraordinary quo-
rum for the decision of questions would, in effect, be to
give the rule to the minority, instead of the majority ;
and. thus to subvert the fundamental principle of a re-
publican government If such a course were generally
allowed, it might be extremely prejudicial to the public
interests in cases, which required new laws to be pass-
ed, or old ones modified, to preserve the general, in
contradistinction to local, or special interests. If it
were even confined to particular cases, the privilege
might enable an interested minority to screen them-
selves from equitable sacrifices to the general weal ; or,
in particular cases, to extort undue indulgences. It
would also have a tendency to foster and facilitate the
baneful practice of secession, a practice, which has
shown itself even in states, where a majority only is
required, which is subversive of all the principles of or-
der and regular government, and which leads direcdy
to public convulsions, and the ruin of republican insti-
tutions.'
1 The Federalist, No. 58 ; Journal of Convention, 218, 243.
9 The Federalist, No. 22, 58.
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CH. XI.] MIETIKOS OF OOIIORCSS. 297
§ 834. But, as a danger of an opposite sort required
equally to be guarded against, a smaller number is au-
thorized to adjourn from day to day, thus to prevent a
legal dissolution of the body, and also to compel the
attendance of absent members.^ Thus, the interests
of the nation, and the despatch of business, are not sub-
ject to the caprice, or perversity, or negligence of the
minority. It was a defect in the articles of confedera-
tion, sometimes productive of great public mischief that
no vote, except for an adjournment, could be deter*
mined, unless by the votes of a majority of the states ; '
and no power of compelling the attendance of the re-
quisite number existed.
1 Journal of Conventioii, 318, 24Q ; 4 Instit 43, 49.
9 Confederation, art 9; 1 Elliot's Debates, 44, 45; The Federalist,
No. 22.
VOL. II. 38
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298 CONSTITUTION OF THE U. STATES. [bOOK IIU
CHAPTER Xn.
PRIYILEOES AND POWERS OF BOTH HOUSES OF CON-
ORESS.
§ 836. The next clause is, " each house may deter-
^mme the rules of its proceedings, punish its members
**for disorderly behaviour, and, with the concurrence of
** two thirds, expel a member/' No person can doubt
the propriety of the provision authorizing eachliouse to
determine the rules of its own proceedings. If the power
did not exist, it would be utterly impracticable to trans-
act the business of the nation, either at all, or at least
with decency, deliberation, and order. The humblest
assembly of men b understood to possess this power ;
and it would be absurd to deprive the councils of the
nation of a like authority. But the power to make
rules would be nugatory, unless it was coupled with
a power to punish for disorderly behaviour, or disobe-
dience to those rules. And as a member might be so
lost to all sense of dignity and duty, as to disgrace the
house by the grossness of his conduct, or interrupt its
deliberations by perpetual violence or clamour, the
power to expel for very aggravated misconduct was
also indispensable, not as a common, but as an ultimate
redress for the grievance. But such a power, so sum-
mary, and at the same time so subversive of the rights
of the people, it was foreseen, might be exerted for
mere purposes of faction or party, to remove a patriot,
or to aid a corrupt measure ; and it has therefore been
wisely guarded by the restriction, that there shall be
a concurrence of two thirds of the members, to justify
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CH. XII.] PRIVIUBOSS OF COKORMS. 299
an expulsion.^ This clause, requiring a concurrence of
two thirds, was not in the original draft of the constitu-
tion, but it was inserted by a vote of ten states, one
being divided.* A like general authority to expel, ex-
ists in the British house of commons ; and in the legis-
lative bodies of many of the states composing the Union.
^ 836. What must be the disorderly behaviour, which
the house may punish, and what punishment, other
than expulsion, may be inflicted, do not appear to have
been setded by any authoritative adjudication of either
house of congress. A learned commentator sup[)oses,
that members can only be punished for misbehaviour
committed during the session of congress, either widiin,
or without the walls of the house ; though he is also of
opinion, that expulsion may be inflicted for criminal
conduct committed in any place.' He does not say,
whether it must be committed during the session of
congress or otherwise. In July, 1797, WUliam Blount
was expelled fix)m the senate, for ** a high misdemean-
our, entirely inconsistent with his public trust and duty
as 9i senator." The offence charged against him was
an attempt to seduce an American agent among the
Indians from his duty, and to alienate the affections and
confidence of the Indians from the public authorities of
the United States, and a negotiation for services m be-
half of the British government among the Indians. It
was not a statuteable offence ; nor was it committed in
his official character ; nor was it committed during the
session of congress ; nor at the seat of government
1 Mr. J. Q. Adamses Report to the senate in the case of John Smith,
31 Dec. 1807 ; 1 Hall's Law Journ. 459 ; Sergeant on Const Law, eh. 28,
p. 287, 288.
2 Journal of Convention, 218, 243.
3 Rawle on the Constitution, ch. 4, p. 47.
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300 coirsTiTirrioii or the v. states, [book m.
Yet by an almost unanimous vote* he was expelled
from that body ; and he was afterwards impeached (as
has been already stated) for this, among other charges.'
It seems, therefore, to be setded by the senate upon
full deliberation, that expulsion may be for any misde-
meanour, which, though not punishable by any statute,
is inconsistent with the trust and duty of a senator. In
die case of John Smith (a senator) in April, 1808, the
charge against him was for participation in the supposed
treasonable conspiracy of Colonel Burr. But Ae mo-
tion to expel him was lost by a want of the constitu-
tkmal majority of two thirds of the members of the
senate.' The precise ground of the failure of the mo-
tion (k)es not appear ; but it may be gathered from the
arguments of his counsel, that it did not turn upon any
doubt, that the power of the senate extended to cases
dT' misdemeanour, not done in the presence or view of
the body; but most probably it was decided upon
some doubt as to the facts/ It may be thought difficult
to draw a clear line of distmction between the right to
inflict the punishment of expulsion^and any oli>er pun-
ishment upon a member, founded on the time, place, or
nature of the offence. The power to expel a member
is not in the British house of commons confined to of-
fences committed by the party as a member, or during
the session' of parliament ; but it extends to all cases.
1 Yeas 25, nay 1.
* See Journal of Senate, 8 July, 1797 ; Sergt^aut's Const Law, ch. dS,
p. 286 ; 1 HaU'8 Law Journ. 459, 47i .
3 Yeas 19. Nays 10.
4 1 Hall's Law Journ. 459,471 ; Journ. of Senatt, 9 April, 1808; Ser-
geant's Const Law, ch. 28, p. 287, 288. See also proceedings of the sen-
ate in the case of Humphrey Marshall, 22 March, 1796 ; Sergeant's
Const Law, ch. 28, p. 285.
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OH. XIL] PRIVILEOSS of COHGRS88. 301
where the offence is such, as, m the judgment of the
house, unfits him for parliamentary duties.^
^ 837. The next clause is, ^ each house shall keep
^ a journal of its proceedings, and from time to time
^ publish the same, except such parts, as may m their
'^judgment require secrecy. And the yeas and nays of
^ the members of either house on any question shall, at
^ the desire of one fifth of those present, be entered on
" the journal.**
§ 838. This clause in its actual form did not pass in
the convention without some struggle and some prc^x>si-
tions of amendment. The first part finally passed by an
unanimous rote ; the exception was carried by a dose
vote of six states against four, one being dirided ; and
the remaining clause, after an ineffectual effort to strike
out "one fifth,** and insert in its stead, "if every mem-
ber present,** was finally adopted by an unanimous
vote.* The object of the whole clause is to ensure pub-
licity to the proceedings of the legislature, and a cor-
respcmdent responsibility of the members to their re-
q)ective constituents. And it is founded m sound
policy and deep political foresight. Intrigue and cabal
are dius deprived of some of their main resources, by
plotting and devising measures in secrecy.* The pub-
fic mind is enlightened by an attentive examination of
the public measures; patriotism, and integrity, and
wisdom obtain their due reward ; and votes are ascer-
tained, not by vague conjecture, but by positive fects.
Mr. Justice Blackstone seems, mdeed, to suppose, that
1 1 Black. Cemm. 163, and Christian'f note ; Id. 167 and note. See
also RexY. WUkt$^ % Wilson's R. 351 ; Cotn. Dig, PorZiomeii^, G. 5. See
1 Hall's Uw Term, 459, 466.
« Journal of the Convention, p. 219, 243, 244, ?45, 354, 37a
' 3 1 Tucker's Black. Comm. App. 204, 205; 2 W^ilson's Lect 157, 15a
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302 coNSTiTUTioir or the v. states, [book hi.
votes openly and publicly given are more liable to
intrigue and combination, than those given privately and
by ballot. " This latter method/* says he, " may be
serviceable to prevent intrigues and unconstitutional
combinations. But it is impossible to be practised 'with
us, at least in the house of commons, where every
member's conduct is subject to the future censure of
his constituents, and therefore should be openly sub-
mitted to their inspection.*'^
§ 839. The history of public assemblies, or of private
votes, does not seem to confirm the former suggestion
of the learned author. Intrigue and combination are
more commonly found connected with secret sessions,
than vdth public debates, with the workings of the bal-
lot box, than with the manliness of viva voce votes.
At least, it may be questioned, if the vote by ballot has,
in the opinion of a majority of the American people,
obtained any decisive preference over viva voce voting,
even at elections. The practice in New England is one
way, and at the South another way. And as to the
votes of representatives and senators in congress, no
man has yet been bold enough to vindicate a secret or
ballot vote, as either more safe, or more wise, more
promotive of independence in the members, or more
beneficial to their constituents. So long as known and
open responsibility is valuable as a check, or an incen-
tive among the representatives of a fi:^ee people, so long
a journal of their proceedings, and their votes, pub-
lished m the face of the world, will continue to enjoy
public favour, and be demanded by public opin-
ion. When the people become indiflTerent to the
acts of their representatives, they will have ceased to
take much interest in the preservation of their liberties.
~ 1 1 Black. Comm. 181, 182.
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CH. XII.] PRIVILEGES OF CONGRESS. 303
When the joumab shall excite no public interest, it
will not be matter of surprise, if the constitution itself is
silently forgotten, or deliberately violated.
^ 840. The restriction of calls of the yeas and nays
to one fifth is founded upon the necessity of preventing
too frequent a recurrence to this mode of ascertaining the
votes, at the mere caprice of an individual A call con-
sumes a great deal of time, and oflen embarrasses the just
progress of beneficial measures. It is said to have been
oflen used to excess in the congress under the confed-
eration ; * and even imder the present constitution it is
notoriously used, as an occasional annoyance, by a dis-
satisfied minority, to retard the passage of measures,
which are sanctioned by the approbation of a strong
majority. The check, therefore, is not merely theoret-
ical ; and experience shows, that it has been resorted
to, at once to admonish, and to control members, in this
abuse of the public patience and the public indulgence.
^841. The next clause is, "neither house, during
" the session of congress, shall, without the consent ^of
^ the other, adjourn * for more than three days, nor to
" any other place, than that, in which the two houses
"shall be sitting.''* It is observable, that the duration
of each session of congress, (subject to the constitutional
termination of their official agency,) depends solely
upon their own will and pleasure, with the single ex-
ception, as wOl be presently seen, of cases, in which the
two houses disagree in respect to the time of adjourn-
ment In no other case is the president aUowed to
interfere with the time and extent of their deliberations.
And thus their independence is efiectually guarded
1 1 Tuck. Black. Comm. App. 205, 206.
3 See Journ. of Convention, 319, 24a See also 2 Elliot's Debates, 276,
277.
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304 CONSTITUTION OF THE U. STATES. [BOOK III.
against any encroachment on the part of- the executive.^
Very different is the situation of paiiiament under the
British constitution ; for the king may, at any tune, put
an end to a session by a prorogation of parliament, or
terminate the existence of parliament by a dissdution^
and a call of a new parliament. It is true, that each
house has authority to adjourn itself separately ; and
this is commonly done from day to day, and sometimes
foE. a week or a moi^th together, as at Christmas and
Easter, or upon other particular occasions. But the ad^
joumment of one house is not the adjournment of the
other. And it is usual, when the king signifies his pleas-
ure, that both, or either of the houses should adjourn
themselves to a certain day, to obey the king's pleasure,
and adjourn accordingly ; for otherwise a prorogation
would certainly follow.*
^ 842. Under the colonial governments, the undue
exercise of the same power by the royal governors
constituted a great public grievance, and was one of the
n^imerous cases of misrule, upon which the declaration
of independence strenuously relied. It was there sol-
emnly charged against the king, that he had called to-
gether legislative [cdonial] bodies at places, unusual,
uncomfortable, and distant from the repository of the
public records; that he had dissolved representative
bodies, for opposmg his invasions of the rights of the
people ; and after such dissolutions, he had refused to
reassemble them for a long period of time. It was natural,
therefore, that the people of the United States should
entertain a strong jeabusy on this subject, and should
interpose a constitutional barrier against any such abuse
1 1 Tucker'f Black. Comm. App. 906, 907.
8 1 Black. Comm. 185 to 190; 9 Wilson's Law Lect 154, 155; Com.
Dig. ParUamefU, L. M. N. O. P.
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CH. XII.] PRITILE0S8 OF CONORS88. 305
by the prerogative of the executive. The state consti-
tutions generally contain some provision on the same
subject, as a security to the independence of the legis-
lature.
^ 842. These are all the powers and privileges,
which are expressly vested in each house of congress
by the constitution. What further powers and privi-
leges they incidentally possess has been a question much
discussed, and may hereafter be open, as new cases
arise, to still further discussion. It is remarkable, that no
power is conferred to punish for any contempts com-
mitted against either house ; and yet it is obvious, that,
unless such a power, to some extent, exists by impli-
cation, it is utterly impossible for either house to per-
form its constitutional functions. For instance, how is
either house to conduct its own deliberations, if it may
not keep out, or expel intruders? If it may not require
and enforce upon strangers silence and decorum in its
presence ? If it may not enable its own members to
have free ingress, egress, and regress to its own hall ol
legislation 1 And if the power exists, by implication, to
require the duty, it is wholly nugatory, unless it draws
after it the incidental authority to compel obedience,
and to punish violations of it. It has been suggested
by a learned commentator, quoting the language of
Lord Bacon,* that, as exception strengthens the force
of a law in cases not excepted, so enumeration weakens
it in cases not enumerated ; and hence he deduces the
conclusion, that, as the power to punish contempts is
not among those enumerated, as belongmg to either
house, it does not exist* Now, however wise or
correct the maxim of Lord Bacon is in a general sense,
I Advancement of Ijearning ; 1 Tuck. Black. App. 200, note.
« 1 Tuckex'f Black, aoo.
VOL. II. 39
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806 CONSTITUTIOlf or the U. states, [book III.
as a means of mterpretation, it is not the sole rule. It
is no more true, than another maxim of a directly oppo-
site character, that where the end is required, the
means are, by implication, given. Congress are requir-
ed to exercise the powers of legislation and delibera-
tion. The safety of the rights of the nation require
this ; and yet, because it is not expressly said, that
congress shall possess the appropriate means to accom-
plish this end, the means are denied, and the end may
be defeated. Does not this show, that rules of mter-
pretation, however correct m a general sense, must
admit of many qualifications and modifications in their
application to the actual business of human life and hu-
man laws 1 Men do not frame constitutions of govern-
ment to suspend its vital interests, and powers, and
duties, upon metaphysical doubts, or ingenious refine-
ments. Such instruments must be construed reasona-
bly, and fau-ly, according to the scope of their purposes,
and to ^ve them effect and operation, not to cripple
and destroy them. They must be construed according
to the common sense applied to instruments of a like
nature ; and in furtherance of the fundamental objects
proposed to be attained ; and according to the known
practice and incidents of bodies of a like nature.
§ 843. We may resort to the common law to aid us
in interpreting such instruments, and their powers ; for
that law is the common rule, by which all our legisla-
tion is mterpreted. It is known, and acted upon, and
revered by the people. It furnishes principles equally
for civil and criminal justice, for public privileges, and
private rights. Now, by the common law, the power
to punish contempts of this nature belongs incidentally
to courts of justice, and to each house of parliament.
No man ever doubted, or denied its existence, as to our
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CH. XII.] PRITILEOE8 OF CONORESS. 307
colonial assemblies in general, whatever may have been
thought, as to particular exercises of it* Nor is this
power to be viewed in an unfavourable light It is a
privilege, not of the members of either house ; but, like
all other privileges of congress, mainly intended as a
privilege of t\ie people, and for their benefit* Mn Jus-
tice Blackstone has, with great force, said, that "laws,
without a competent authority to secure their adminis-
tration from disobedience and contempt, would be vain
and nugatory. A power, therefore, in the supreme
courts of justice to suppress such contempts, &c.,
results from the first principles of judicial establishments,
and must be an inseparable attendant upon every supe-
rior tribunal.'* ^ And the same reasoning has been
applied, with equal force, by another learned commen-
tator to legislative bodies. "It would,*' says he, "be
inconsistent with the nature of such a body to deny it
the power of protecting itself from injury, or insult If
its deliberations are not perfectly free, its constituents
are eventually mjured. This power has never been
denied in any country, and is incidental to the nature of
all legislative bodies. If it possesses such a power in the
case of an immediate insult or disturbance, preventing
the exercise of its ordinary fimctions, it is impossible
to deny it in other cases, which, although less immedi-
ate or violent, partake of the same character, by having
a tendency to impair the firm and honest discharge of
public duties.'* *
§ 844. This subject has of late undergone a great
deal of discussion both m England and America ; and
1 4 Black. Comm. 283, 284, 285, 286 ; 1 Black. Qomm. 164, 165 ; Com.
Dig. ParUament, G. 2, 5 ; Burdett v. Abbott, 14 East R. 1 ; BurdtU v.
Colman, 14 East R. 163; S. C. 5 Dow. ParL Cases, 165, 199.
8 Christito's note, 1 Black. Comm. 164. 9 4 Black. Comm. 266.
4 Rawle on the Constitution, ch. 4, p. 48; 1 Kent's Comm. (2d edit)
Lect 11, p. 221, 235.
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808 CONSTITUTION OP THE U. STATES. [BOOK III.
has finally received the adjudication of the highest judi-
cial tribunals in each country. In each country
upon the fullest consideration the result was the same,
viz. that the power did exist, and that the legislative
body was the proper and exclusive forum to de-
cide, when the contempt existed, and when there
was a breach of its privileges ; and, that the power to
punish followed, as a necessary incident to the power to
take cognizance of the offence.* The judgment of the
^ The learned reader is referred to BurdeU v. AbhoU, 14 East R. 1 ;
BurdeU v. Cdman, 14 East R. 163 ; S. C. 5 Dow. Pari. R. 165, 199 ;
and Ander$on v. Dtmny 6 Wheat R. 204. The question is also much
discussed in Jefferson's Manual, § 3, and 1 Tuck. Black. Comm. A pp.
note, p. 900 to 205. See also 1 Black. Comm. 164, 165.— Mr. Jeffer-
86n, in his Manual, (§ 3,) in commenting on the case of William
Duane for a political libel, has summed up the reasoning on each
side with a manifest leaning against the power* It presents the
strength of the argument on that side, and, on that account, deserves to
be cited at large.
*^ In debating the legality of this order, it was insistedi in support of it,
that everjr man, by the law of nature, and every body of men, possesses
the right of self-defence ; that all public functionaries are essentially
invested with the powers of self-preservation ; that they have an inhe-
rent right to do all acti^ necessary to keep themselves in a condition to
discharge the trusts confided to them ; that whenever authorities are
given, the means of carrying them into execution are given by necessary
implication ; that thus we see the British parliament exercise the right
of puaishing contempts ; all the state legislatures exercise the same
power ; and every court does the same ; that, if we have it not, we sit
at the mercy of every intruder, who may 'enter our doors, or gallery, and,
by noise and tumult, render proceeding in business impracticable ; that
if our tranquillity is to be perpetually disturbed by newspaper defalca-
tion, it will not be possible to exercise our functions with the requisite
coolness and deliberation ; and that we must therefore have a power to
punish these disturbers of our peace and proceedings. To this'it was
answered, that the parliament and courts of England have cognizance of
contempts by the express provisions of their law ; that the state legisla-
tures have equal authority, because their powers are plenary ; they
represent their constituents completely, and possess all their powers,
except such, as their constitutions have expressly denied them ; that the
courts of the several states have the same powers by the laws of their
states, and those of the federal government by the same state laws
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CH. VIII.] PRIVILEGES OF CONGRESS. 309
Supreme Court of the United States, m the case aUuded
to, contains so elaborate and exact a consideration of
the whole argument on each side, that it will be far
more satisfactory to give it in a note, as it stands in, the
printed opinion, than to hazard, by any abridgment, im-
pairing the just force of the reasoning.*
adopted in each state, by a law of congress; that none of these bodies,
therefore, derive those powers from natural or necessary right, but from
express law ; that congress have no such natural or necessary power,
or any powers, but such as are given them by the constitution ; that that
ha9 given them, directly, exemption from personal arrest, exemption
from question elsewhere, for what b said in their house, and power over
their own'members and proceedings ; for these no further law is neces-
sary, the constitution being the law ; that, moreover, by that article of
the constitution, which authorizes them * to make all laws necessary and
proper for carrpng into execution the powers vested by the constitution
In them,' they may provide by law for an undisturbed exercise of their
ibnctions, for example, for the punishment of contempts, of affrays or tu-
mult in their presence, &c ; but, till the law be made, it does not exist, and
does not exist, from their own neglect ; that, in the mean time, however,
they are not unprotected, the ordinary magistrates and courts of law
being open and competent to punish all unjustifiable disturbances or
defamations ; and even their own sergeant, who may appoint deputies ad
libitum to aid him, is equal to soaall disturbances ; that in requiring a
a previous law, the constitution had regard to the inviolability of the
citizen, as well as of the member ; as, should one house in the regular
form of a bill, aim at too broad privileges, it may be checked by the
other, and both by the president ; and also as, the law being promulgat-
ed, the citizen will know how to avoid offence. But if one branch may
assume its own privileges without control ; if it may do it on the spur of
the occasion, conceal the law in its own breast, and, after the fact com-
mitted, makes its sentence both the law and the judgment on that fact ;
if the offence is to be kept undefined, and to be declared only ex re naiOy
and, according to the passions of the moment, and there be no limitation
either in the manner or measure of the punishment, the condition of the
citizen will be perilous indeed."
The reasoning of Lord Chief Justice De Grey in Rex v. Brasa Crosby^
(3 Wilson's R. 188,) and of Lord EUenborough in Burddl v. MhoU, (14
East R. 1,) is exceedingly cogent and striking against that favoured by
Mr. Jefferson. It deserves, and will requite an attentive perusal. See
idso Burdett v. Mhoit, 4 Taunt R. 401 ; 4 Dow's Pari. Rep. 165.
1 It is necessary to premise, that the suit was brought for false im-
prisonment by a party, who had been arrested under a warrant of the
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310 ooNSTiTirrioir of ths v. states, [book in«
§ 845. This is not the only case, in which the house
of representatives has exerted the power to arrest, and
punish for a contempt committed within the walls of the
speaker of the house of representativeB, by the sergeant-at-arms, for an
alleged contempt of the house, (an attempt to bribe a member,) and the
cause was decided upon a demurrer to tbe justification set up by the
officer. After a preliminary remark upon the range of tbe argument by
the counsel, Mr. Justice Johnson, in delivering tbe opinion of the Court
proceeded as follows :
^ The pleadings have narrowed them down to the simple inquiry,
whether the house of representatives can take cognizance of contempts
committed against themselves, under any circumstances ? The duress
complained of was sustained under a warrant issued to compel tbe par-
ty's appearance, not for the actual infliction of punishment for an offence
committed. Yet it cannot be denied, that the power to institute a prose-
cution must be dependent upon the power to punish. If the bouse of
representatives possessed no authority to punish for contempt, the initiat-
ing process issued in the assertion of tiiat authority must have been
illegal ; there was a want of jurisdiction to justify it
*' It is certainly true, that there is no power given by the constitution
to either house to punish for contempts, except when committed by their
own members. Nor does the judicial or criminal power given to the
United States, in any part, expressly extend to the infliction of punish-
ment for contempt of cither house, or any one co-ordinate branch of the
government Shall we, therefore, decide, that no such power exists ?
** It is true, that such a power, if it exists, must be derived from ^impli-
cation, and the genius and spirit of our institutions are hostile to the
exercise of implied powers. Had the faculties of man been competent
to the fVaming of a system of government, which would have lefl noth-
ing to implication, it cannot be doubted, that the eflfbrt would have been
made by the framers of the constitution. But what is the fact? There
' it not in the whole of that admirable instrument a grant of powers,
which does not draw after it others, not expressed, but vital to their
exercise ; not substantive and independent, indeed, but auxiliary and
•ubordinate.
** The idea is Utopian, that government can exist without leaving the
exercise of discretion somewhere. Public security against the abuse of
such discretion must rest on responsibility, and stated appeals to public
approbation. Where all power is derived from the people, and public
functionaries, at short intervals, deposite it at the feet of the people, to
be resumed again only at their will, individual fears may be alarmed by
the mociten of imagination, but individual liberty can be in little dan-
ger.
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OH. XII.3 PRIYILSOSS OF COITGRUS. 811
house. The power was exerted * m the case of Rob-
ert Randall) m December, 1795, for an attempt to cor-
rupt a member ; ' in 1796, in the case of ^ a chal-
" No one is to visionaiy, is to dispute the ateertioo, that the pole end
and aim of all oar institutions is the safety and happiness of the citiaen.
But the relation hetween the action and the end is not always so direc:!
and palpahle, as to strike the eye of every obsenrer. The science
of government is the most abstruse of all sciences i if, indeed, that caa
be called a science, which has but few fixed principles, and prsctically
consists in little more, than the exercise of a sound discretion, applied to
the exigencies of the state, as they ariae. It is the science of experi-
ment.
** But if there is one maxim, which necessarily rides over all others, in
the practical application of government, it is, that the public functiona*
ries roust be left at liberty to exercise the powers, which the peofde
have intrusted to them. The interests and dignity of those, who created
them, require the exertion of the powers indispensable to the attsinment
of the ends of their creation* Nor is a casual conflict with the rights of
particular individuals any reason to be urged against the exercise of
such powers. The wretch beneath the gallows may repine at the fate,
which awaits him ; and yet it is no less certain, that the laws, under which
he suffers, were made for his security. The unreasonable murmurs of
individuals against the restraints of society have a direct tendency to
produce that worst of all despotisms, which makes every individual the
tyrant over his neighbour's rights.
** That * the safety of the people is the supreme law,' not only com-
ports with, but is indispensable to, the exercise of those powers in their
public functionaries, without which that safety cannot be guarded. Oa
this principle it i^ that courts of justice are universally acknowledged
to be vested, by their very creation, with power to impose silence,
respect, and decorum, in their presence, and submission to their lawful
mandates, and, as a corollary to this proposition, to preserve themselves
and their officers from the approach of insults or pollution.
^ It is true, that the courts of justice in the United States are vested,
by express statute provision, with power to fine ai>d imprison for con-
tempts ; but it does not follow, from this circumstance, that they would
not have exercised that power without the aid of the statute, or not, in
cases, if such should occur, to which such statute provision may not
extend. On the contrary, it is a legislative assertion of this right, as
incidental to a grant of judicial power, and can only be considered
1 By a vote of 78 yeas against 17 nays. •
* 1 Tack. Black. Comm. App. 200 to 20Ss note ; Jeffenon'a Manual,
sa
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312 CONSTITUTIOir OP THE V. STATES. [BOOK HI.
lenge given to a member, which was held a breach of
privilege;* and m May, 1832, m the case of Samuel
Houston, for an assault upon a member for words spoken
eiUier as an instance of abundant caution, or a legislative declaration,
that the power of punishing for contempts shall not extend beyond its
known and acknowledged limits of fine and imprisonment.
^* But it is contended, that if this power in the bouse of representa-
tives is to be asserted on the plea of necessity, the ground is too broad,
and the result too indefinite ; that the executive, and every coK>rdinate,
and even subordinate, branch of the government, may resort to the same
justification, and the whole assume to themselves, in the exercise of this
power, the most tyrannical licentiousness.
** This is unquestionably an evil to be guarded against, and if the doc-
trine may be pushed to that extent, it must be a bad doctrine, and is justly
denounced.
<* But what is the alternative ? The argument obviously leads to the
total annihilation of the power of the house of repsesentatives to guard
itself from contempts ; and leaves it exposed to every indignity and in-
terruption, that rudeness, caprice, or even conspiracy, may meditate
against it This result is fraught with too much absurdity not to bring
into doubt the soundness of any argument, from which it is derived.
That a deliberate assembly, clothed with the majesty of the people, and
charged with the care of all, that is dear to them ; composed of the most
distinguished citizens, selected and drawn together from every quarter
of a great nation ; whose deliberations are required by public opinion to
be conducted under the eye of the public, and whose decisions must be
clothed widi all that sanctity, which unlimited confidence in their wis-
dom and purity can inspire ; that such an assembly should not possess
the power to suppress rudeness, or repel insult, is a supposition too wild
to be suggested. And accordingly to avoid the pressure of these con-
siderations, it has been argued, that the right of the respective houses
to exclude from their presence, and their absolute control within their
own walls, carry with them the right to punish contempts committed in
their presence ; while the absolute legislative power given to congress
within this district, enables them to provide by law against all other in-
sults, against which there is any necessity for providing.
** It is to be observed, that so far as the issue of this cause is impli-
cated, this argument yields all right of the plaintiff in error to a decis-
ion in (lis favour ; for, non constat, from the pleadings, but that this war-
rant issued for an offence committed in the immediate presence of the'
house.
1 Jefferson's Manual, § 3.
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OH. XII.] pmiYiLEOSfl or ooiieRE8S« 819
in his.place, and afterwards printed^ reflecting on
the character of Houston.^ In the former case, the
house punished the offence by imprisonment; in the
** Nor is it immaterial to notice, what difficulties the negation of this
right in the house of representatives draws after it, when it is consider-
ed, that the concession of the power, if exercised within their walls,
relinquishes the great grounds of the argument, to wit : the want of an
express grant, and the unrestricted and undefined nature of the power
here set up. For why should the house be at liberty to exercise an
ungraDted, an unlimited, and undefined power within their walls, any
more, than without them ? If the analogy with indlridual right and
power bo resorted to, it will reach no farther, than to exclusion ; and it
requires no exuberance of imagination to exhibit the ridiculous conse-
quences, which might result from such a restriction, imposed upon the
conduct of a deliberative assembly.
** Nor would their situation be materially relieved by resorting to their
legislative power within the district That power may, indeed, be ap-
plied to many purposes, and was intended by the constitution to extend
to many purposes indispensable to the security and dignity of the gen-
eral government ; but there are purposes of a more grave and general
character, than the offences, which may be denominated contempts, and
which, from their very nature, admit of no precise definition. Judicial
gravity will not admit of the illustrations, which this remark would ad-
mit of. Its correctness is easDy tested by pursuing, in imagination, a
legislative attempt at defining the cases, to which the epithet contempt
might be reasonably applied.
*^ But although the offence be held undefinable, it is justly contended,
that the punishment need not be indefinite. Nor is it so.
^ We are not now considering the extent, to which the punishing,
power of congress, by a legislative act, may bo carried. On that sub-
ject, the bounds of their power are to be found in the provisions of the
constitution.
" The present question is, what Js the extent of the punishing power,
which the deliberative assemblies of the Union may assume, and exer-
cise on the principle of self-preservation ?
" Analogy, and the nature of the case, furnish the answer — * (Ac least
possible power adequate to the end proposed ; " which is the power of im-
prisonment. It may, at first view, and from the history of the practice
of our legislative bodies, be thought to extend to other inflictions. But
every other will be found to be mere commutation for confinement ;
since commitment alone is the alternative, where the individual proves
1 See the Speeches of Mr. Doddridge and Mr. Burges on this occasion.
VOL. II. 40
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314 CONSTITUTIOir OF THE V. STATES. [BOOK III.
latter, by a reprimand by the speaker. So in 1800, in
the case of William Duane, for a printed libel against the
senate, the party was held guilty of a contempt^ and
contumacious. And even to the duration of imprisonment a period is
imposed by the nature of things ; since the existence of the power> that
imprisons, is indispensable to its continuance ; and although the legisla-
tive power continues perpetual, the legislative body ceases to exist on
the moment of its adjournment or periodical dissolution. It follows,
that imprisonment must terminate with that adjournment.
" This view of the subject necessarily sets bounds to the exercise of
a caprice, which has sometimes disgraced deliberative assemblies, when
■ under the influence of strong passions or wicked leaders, but the in-
stances of which have long sinre remained on record only« as historical
facts, not as precedents for imitation. In the present fixed and settled
state of English institutions, there is no more danger of their being
revived, probably, than in our own.
'* But the American legislative bodies have never possessed, or pre-
tended to, the omnipotence, which constitutes the leading feature in the
legislative assembly of Great Britain, and which may have led occasion-
ally to the exercise of caprice, under the specious appearance of merited
resentment
" If it be inquired, what security is there, that with an officer avowing
himself devoted to their will, the house of representatives will confine its
punishing power to the limits of imprisonment, and not push it to the
infliction of corporeal punishment, or even death, and exercise it in cases
aflTecting the liberty of speech and of the press ? The reply is ta be
found in the consideration, that the constitution was formed in and for
an fdvancad state of society, and rests at every point on received opin-
ions and fixed ideas. It is not a new creation, but a combination of ex-
isting materials, whose properties and attributes were familiarly under-
stood, and had been determined by reiterated experiments. It is not,
therefore, reasoning upon things, as they are, to suppose, that any de-
liberative asembly, constituted under it, would ever assert any other
rights and powers, than those, which had been established by long prac-
tice, and conceded by public opinion. Melancholy, also, would be that
state of distrust, which rests not a hope upon a moral influence. The
most absolute tyranny could not subsist, where men could not be trusted
with pow6r, because they might abuse it, much less a government,
which has no other basis, than the sound morals, moderation, and good
sense of those, who compose it. Unreasonable jealousies not only blight
the pleasures, but dissolve the very texture of society.
" But it is argued, that the inference, if any, arising under the consti-
tution, is against the exercise of the powers here asserted by the hoase
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OB. XII.] PRIYILEOES OF COKORESS. 315
punished by imprisonment' Nor is there any thing
peculiar in the claim under the constitution of the
United States. The same power has been claimed, and
of representatives ; that the express grant of power to punish their mem-
bers respectively, and to expel them, by the application of a familiar
maxim, raises an implication against the power to punish any other, than
their own members.
^ This argument proves too much ; for its direct application would
lead to the annihilation of almost every power of congress. To enforce
its laws upon any subject, without the sanction of punishment, is obvi-
ously impossible. Yet there is an express grant of power to punish in
one class of cases and one only ; and all the punishing power exercised
by congress in any cases, except those, which relate to piracy and of-
fences against the laws of nations, is derived from implication. Nor
did the idea ever occur to any one, that the express grant in one class
of cases repelled the assumption of the punishing power in any other.
*^ The truth is, that the exercise of the powers given over their own
members was of such a delicate nature, that a constitutional provision
became necessary to assert, or communicate it Constituted, as that
body is, of the delegates of confederated states, some such provision
was necessary to guard against their mutual jealousy, since every pro-
ceeding against a representative would indirectly affect the honour or
interests of the state, which sent him.
** In reply to the suggestion, that, on this same foundation of necessi-
ty, might be raised a superstructure of implied powers in the executive,
and every other department, and even ministerial officer of the govern-
ment, it would be sufficient to observe, thai neither analogy nor prece-
dent, would support the assertion of such powers in any other, than a legis-
lative or judicial body. Even corruption any where else would not con-
taminate the source of political life. In the retirement of the cabinet^
it is not expected, that the executive can be approached by indignity or
insult ; nor can it ever be necessary to the executive, or any other de-
partment, to hold a public deliberative i^^mbly. These are not argu-
ments ; they are visions, which mar the enjoyment of actual blessings, '
with the attack or feint of the harpies of imagination.
<< As to the minor points made in this case, it is only necessary to ob-
serve, that there is nothing on tlie face of this record, from which it
can appear, on what evidence this warrant was issued. And we are not
to presume, that the house of representatives would have issued it with-
out duly esUblishing the fact charged on the individual. And, as to
1 Joum. of Senate, 37th March, 1800 ; Jefferson's Manual, § a See
also Bwrddt v, MboUj 14 East, 1.
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316 coNSTiTUTioir or the u» states, [book ni.
exercised repeatedly, under the state goyeraments,
independent of any special constitutional provision,
upon the broad ground stated, by Mr. Chief Justice
Shippen, that the members of the legislature are legal-
ly, and inherently possessed of all such privileges, as
are necessary to enable them, vnth freedom and safety,
to execute the great trust reposed in them by the
body of the people, who elected them.*
^ 846. The povv^er to pimish for contempts, thus as-
serted both m England and America, is confined to
punishment during the session of the legislative body,
and cannot be extended beyond it' It seems, that
the power of congress to punish cannot, in its utmost
extent, proceed beyond imprisonment; and then it
terminates with the adjournment, or dissolution of that
body.* Whether a fine may not be imposed, has been
recendy^ made a question in a case of contempt
the distance, to which the process might reach, it is very clear, that
there exists no reiison for confining its operation to the limits of the
District of Columbia. After passing those limits, we know no bounds,
that can be prescribed to its range, but those of the United States. And
why should it be restricted to other boundaries ? Such are the limits of
the legislating powers of that body ; and the inhabitant of Louisiana or
Maine may as probably charge them with bribery and corruption, or at-
tempt, by letter, to induce the commission of either, as the inhabitant of
any other section of the Union. If the inconvenience be urged, the
reply is obvious: there is no difficulty in observing that respectful de-
portment, which will render all apprehension chimerical.^
See also Rex v. Brass Crosby, 3 Wilson R. 188. — In the convention
a proposition was made and referred to the select committee appointed to
draft the constitution giving authority to punish for contempts, and enu-
merating them. The committee made no report on the subject Journ.
of Convention, 20th Aug. 263, 264.
1 Botton V. Martin, 1 Dall. R. 296. See also House of Delegates in
1784, the case of John Warden, 1 Elliot's Debates, 69 ; C(iffin v. C<iffin,
4 Mass. R. 1,34,35.
« Dunn V. Anderson, 6 Wheht R. 204, 230, 231.
3 Dwm V. Andermm, 6 Wheat R. 204, 230, 231 ; 1 Kenf a Comm.
Lectll,p.22L 4 in 1831.
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CH. XII.] PRinusaES or coitgiucss. 817
before the house of lords ; upon which occasion Lord
Chancellor Brougham expressed himself in the nega-
tive, and the other law lords, Eldon and Tenterden^
m the affirmative ; but the point was not then solemn-
ly decided.^ It had, however, been previously affirmed
by the house of lords in the case of Rex .y. Flowery
(8 T. R. 31 4,) m case of a libel upon one of the Bishops.
Lord Kenyon then said, that in ascertaining and punish-
ing for a contempt of its privileges, the house acted in
a judicial capacity.*
^ 847. The sixth section of the first article contains
an enumeration of the rights, privileges, and disabilities
of the members of each house m their personal and in-
dividual characters, as contradistinguished from the
rights, privileges, and disabilities of the body, of which
they are members. It may here, again, be remarked,
that these rights and privileges are, m truth, the rights
and privileges of their constituents, and for their benefit
and security, rather than the rights and privileges of
the member for his own benefit and security .* In like
manner, the dbabilities imposed are founded upon the
same comprehensive policy ; to guard the powers of the
representative from abuse, and to secure a wise, im-
partial, and uncorrupt administration of his duties.
i See a learned article on this subject in the English Law Magazine
for Joly, 1831, p. 1, ^. Parliamentary Debates, 1831.
9 In Yates v. Lansing, (9 Johns. R. 417,) Mr. Justice PiaU said, that
^ the right of punishing for contempts by summary conviction is inhe-
rent in all courts of justice and legislative assemblies, and is essential to
their protection and existence. It is a branch of the common law adopt-
ed and sanctioned by our state constitution. The decision involved
in this power is in a great measure arbitrary and unde6nable ; and yet
the experience of ages has demonstrated, that it is perfectly compatible
with civil liberty, and auxiliary to the purest ends of justice."
< Com. Dig. Farlwmentf D. 17.
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318 CONSTITUTIOir OF THE U. STATES. [BOOK III.
§ 848. The first clause is as follows : ^^The senators
"and representatives shall receive a compensation for
" their services, to be ascertained by law, and paid out
" of the treasury of the United States. They shall, in
•* all cases, except treason, felony, and breach of the
"peace, bei privileged from arrest during their attend-
"ance'at the session of their respective houses, and in
" going to, and returning from, the same. And for any
"speech or debate in either house they shall not be
"questioned in any other place.''
§ 849. In respect to compensation, there is, at pres-
ent, a marked distinction between the members of the
British parliament, and the members of congress ; the
former not being, at present, entitled to any pay.
Formerly, indeed, the members of the house of com-
mons were entitled to receive wages from their constit-
uents ; but the last known case is that of Andrew
Marvell, who was a member from Hull, in the first par-
liament after the restoration of Charles the Second
Four shillings sterling ^ day used to be allowed for
a knight of the shire ; and two shillings a day for a
member of a city or borough; and this rate was estab-
lished in the reign of Edward the Third. And we are
told, that two shillings a day, the allowance to a bur-
gess, was so considerable a sum, m these ancient times,
that there are many instances, where boroughs petidon-
ed to be excused from sending members to parliament,
representing, that they were engaged in buildmg
bridges or other public works, and, therefore, unable
to bear so extraordinary an expense.* It is believed,
that the practice m America during its colonial state
was, if not universally, at least generally, to allow a
1 1 Black. Comm. 174, and Cbristian'a note, 34 ; Id. Prynne on 4 loft
39 ; Com. Dig. ParUameni^ D. 16.
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OH. Xn.] PRIYILEGXS OF COIfOIUESS. 319
compensation to be paid to members ; and the prac-
tice is believed to be absolutely universal, under the
state constitutions. The members are not, however,
always paid out of the public treasury ; but the prac-
tice still exists, constitutionally, or by usage, in some
of the states, to charge the amount of the compensa-
tion fixed by the legislature upon the constituents, and
levy it in the state tax. That has certainly been the
general course in the state of Massachusetts ; and it was
probably adopted from the ancient practice in England.
^ 850. Whether it is, on the whole, best to allow to
members of legislative bodies a compensation for their
services, or whether their services should be considered
merely honorary, is a question admitting of much argu-
ment on each side; and it has accordingly found strenu-
ous advocates, and opponents, not only m speculation,
but in practice. It has been already seen, that in Eng-
land none is now allowed, or claimed ; and there can
be little doubt, thsatt public opinion is altogether in fa-
vour of their present course. On the other hand, in
America an opposite opinion prevails among those,
whose influence is most impressive with the people on
such subjects. It is not surprising, that under such
circumstances, there should have been a considerable
diversity of opinion manifested in the convention itself.
The proposition to aUow compensation out of the pub-
lic treasury, to members of the house of representa-
tives, was originally carried by a vote of eight states
against three ; * and to the senators by a vote of seven
states agamst three, one being divided.* At a subse-
quent period, a motion to strike out the payment out of
the public treasury was lost by a vote of four states in
1 Journal of Ck>nyentioii9 ^7^ 116,117. > Id. lia
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820 CONSTITUTION OF THS U. STATES. [BOOK III«
the affirmaiive, and five in the negative, two being di«
vided ; ^ and the whole proposition, as to representa-
tives, was (as amended) lost by a vote of five states
for it, and five agamst it, one being divided* And as
to senators, a motion wa3 made, that they should be
paid by their respective states, which was lost, five
states voting for it, and six agamst it ; and then the
proposition to pay them oat of the public treasury was
lost by a similar vote.' At a subsequent period a pro-
position was reported, that the compensation of the
members of both houses should be made by the state,
in which they were chosen ; ^ and ultimately the pres-
ent plan was agreed to by a vote of nine states against
two.^ Such a fluctuation of opinion exhibits in a strong
light the embarrassing considerations, which surround-
ed the subject*
^851. The principal reasons in favour of a compen-
sation may be presumed to have been the following*
In the first place, the advantage, it secured, of command-
mg the first talents of the nation in the public coundl%
by removing a virtual disqualification, that of poverty,
fit)m that large class of men, who, though favoured by
nature, might not be favoured by fortune. It could
hardly be expected, that such men would make the
necessary sacrifices m order to gratify their ambition
for a public station ; and if they did, there was a cor-
responding danger, that they might be compelled by
their necessities, or tempted by their wants, to jdeld
up their independence, and perhaps their integrity, to
the allurements of the corrupt, or the opulent'^ In the
1 Journ. of Convention, 142. a Id. 144. 3 Id. 150, 151.
< Id. 219, §10. 5 Id. 251.
6 See Yates's Minutes, 4 Elliot's Deb. 92 to 99.
7 See 2 Elliot's Debates, 279, 280 ; Yates's Minutes, 4 Elliot's Deb.
92 to 99.
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CH. XII.] PRIYILEOXS OF CONGRESS. 321
next place, it would, in a prop(»tionate degree, gratify
the popular feeling by enlarging the circle of candi-
dates, from which members might be chosen, and bring-
ing the office within the reach of persons in the middle
ranks of society, although they might not possess shin*
ing talents ; a course best suited to the equality found,
and promulgated m a republic. In the next place, it
would 'make a seat in the national councils, as attrac-
tive, and perhaps more so, than in those of the state, by
the superior emoluments of office. And in the last
place, it would be in conformity to a long and well
settled practice, which embodied public sentiment, and
had been sanctioned by pubhc approbation.*
§ 852. On the other hand, it might be, and it was,
probably, urged against it, that the practice of allowing
compensation was calculated to make the office rather
more a matter of bargain and speculation, than of high
political ambition. It would operate, as an inducement
to vulgar and grovelmg demagogues, of little talent,
and narrow means, to defeat the claims of higher can-
didates, than themselves ; and with a view to the com-
pensation alone to engage in all sorts of corrupt intrigues
to procure their own election. It would thus degrade
these high trusts from being deemed the reward of
distinguished merit, and strictly honorary, to a mere
traffic for political office, which would first corrupt the
people at the polls, and then subject their liberties to
be bartered by their venal candidate. Men of talents
in this way would be compelled to degradation, in or-
der to acquire office, or would be excluded by more
unworthy, or more cunning candidates, who would feel,
that the labourer was worthy of his hire. There is no
1 See Rawle on the Ck>Dttitation, ch. 18, p. 181.
VOL. II. 4Z
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322 CONSTITUTION OF THS V. STATES. [BOOK III.
danger, that the want of compensation would deter
men of suitable talents and virtues, even in the humbler
walks of life, fipom becoming members ; since it could
scarcely be presumed, that the public gratitude would
not, by other means, aid them in their private business,
and increase their just patronage. And if, in a few
cases, it should be otherwise, it should not be forgotten,
that one of the most wholesome lessons to be taught
in republics was, that men should learn suitable econ-
omy and prudence in theu* private affairs ; and that
profusion and poverty were, with a few splendid ex-
ceptions, equally unsafe to be entrusted with the public
rights and interests, since, if they did not betray, they
would hardly be presumed willing to protect them.
The practice of England abundantly showed, that com-
pensation was not necessary to bring into public life
the best talents and virtues of the nation. In looking
over her list of distinguished statesmen, of equal
purity and patriotism, it would be found, that compara-
tively few had possessed opulence ; and many had
struggled through life with the painful pressure of nar-
row resources, the res augusUe dond}
^ 863. It does not become the commentator to say,
whether experience has as yet given more weight to
the former, than to the latter reasons. Certain it is,
that the convention, in adopting the rule of allowing a
compensation, had principaDy in view the importance
of securing the highest dignity and independence in the
discharge of legislative functions, and the justice, as
well as duty of a free people, possessing adequate
means, to indemnify those, who were employed in
then- service, against aU the sacrifices incident to their
^ See Yates's Minutes, 4 Elliot's Debates, 92 to 99.
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CH. xil] privilcoes of congress. 323
station. It has been justly observed, that the principle
of compensation to those, who render services to the
public, runs through the whole constitution.^
§ 864. If it be proper to allow a compensation for
services to the members of congress, there seems the
utmost propriety in its being paid out of the public
treasury of the United States. The labour is for the
benefit of the nation, and it should properly be remu-
nerated by the nation. Besides ; if the compensation
were to be allowed by the states, or by the constituents #
c^ the members, if left to their discretion, it might keep
the latter in a state of slavish dependence, and might
introduce great inequalities in the allowance. And if
it were to be ascertained by congress, and paid by the
constituents, there would always be danger, that the
rule would be fixed to suit those, who were the least en-
Ughtened, and the most parsimonious, rather than those,
who acted upon a high sense of the dignity and the
duties of the station. Fortunately, it is left for the de-
cbion of congress. The compensation is " to be ascer-
tsdned by law ;'* and never addresses itself to the pride,
or the parsimony, the local prejudices, or local habits of
any part of the Union. It is fixed with a Jiberal view
to the national duties, and is paid fi*om the national purse.
If the compensation had been left, to be fixed by the
state legislature, the general government would have
become dependent upon the governments of the states ;
and the latter could almost, at their pleasure, have dis-
solved it* Serious evils were felt fi^m this source under
the confederation, by which each state was to maintain
its own delegates m congress ;' for it was found, that the
1 Rawle on the ConstitutioD, ch. 18, p. 179.
• 3 Elliot's Debates, 379.
> Articles of Confederation, arc. 5.
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324 coNSTiTimoir or ths v. states, [book hi.
states too often were operated upon by local consid-
erations, as contradistinguished from general and na-
tional interests. *
§ 855. The only practical question, which seems to
have been farther open upon this head, is, whether the
compensation should have been ascertained by the con-
stitution itself, or left, (as it now is,) to be ascertained
from time to time by congress. If fixed by the consti-
tution, it might, from the change of the value of money,
^and the mpdes of life, have become too low, and utterly
inadequate. Or it might have become too high in con-
sequence of serious changes in the prosperity of the
nation.* It is wisest, therefore, to have it left, where it is,
to be decided by congress from time to time, according
to their own sense of justice, and a large view of the
national resources. There is no danger, that it will
ever become excessive, without excitmg general dis-
content, and then it will soon be changed from the re-
action of public opmion. The danger rather is, that
public opinion will become too sensitive upon this sub-
ject ; and refuse to allow any addition to what may be
at the time a very moderate allowance. In the actual
practice of the government, this subject has rarely been
stirred without producing violent excitements at the
elections. This alone is sufficient to establish the safe-
ty of the actual exercise of the power by the bodies,
with which it is lodged, both in the state and national
legislatures.' It is proper, however, to add, that the
omission to provide some constitutional mode of fixing
the pay of members of congress, without leaving the
subject to their discretion, formed in some minds a
strong objection to the constitution.*
1 2 Elliot's Debates, 279 ; 1 Elliot's Debates, 70, 71.
• 2 BUiot's Debates, 279, 280, 281, 283. 3 1 EUiot's Debates, 76^ 71.
4 See Gov. Randolph's Letter ; 3 Amer. Mas. 62, 70.
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cm. XUJ] PEITILEQM OF OOK6RB8S. 325
^ 866. The next part of the clause regards the priy-
ilege of the members from arrest, except for crimes,
during their attendance at the sessions of congress, and
their going to, and returning from them. This privilege
is conceded by law to the humblest suitor and witness
in a court of justice ; and it would be strange, indeed,
if it were denied to the highest functionaries of the state
in the discharge of their public duties. It belongs to
congress in common with all other legislative bodies,
which exist, or have existed in America, since its first set-v
tiement, under every variety of government ; and it has
immemorially constituted a privilege of both houses of
the British parliament^ It seems absolutely indispensa-
ble for the just exercise of the legislative power in
every nation, purporting to possess a free constitution
of government ; and it cannot be surrendered without
endangering the public liberties, as well as the private
independence of the members.*
§ 867. This privilege from arrest, privileges them of
course against all process, the disobedience to which is
punishable by attachment of the person, such as a sub^
pcsna ad respondendum, aut testificanduroy or a summons
to serve on a jury ; and (as has been justly observed)
with reason, because a member has superiour duties to
perform in another place. When a representative is
withdrawn from his seat by a summons, the people,
whom he represents, lose their voice in debate and vote,
as they do in his voluntary absence. When a senator
is withdrawn by summons, his state loses half its voice
in debate and vote, as it does in his voluntary absence.
The enormous disparity of the evil admits of no com-
1 1 Black. Comm. 164, 165; Com. Dig. Parliament, D. 17; Jeffereon'i
Manual, § .% PriviUgt ; Bmyon v. Eodyn, Sir O. Bridg. R. 334
9 1 Kent Comm.Lect 11, p. 231; BoUon y. MaHin, 1 DalL R.996;
Cqfiny. Cqffin^ 4 Mass. R. 1.
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326 CONSTITUTION OF THE V. STATES. [BOOK III.
parison.* The privilege, indeed, is deemed not mere-
ly the privilege of the member, or his constituents, but
the privilege of the house also. And every man must
at his peril take notice, who are the members of the
house returned of record.*
§ 868. The privilege of the peers of the British par-
liament to be free from arrest, in civil cases, is for ever
sacred and inviolable. For other purposes, (as for
common process,) it seems, that their privilege did not
extend, but from the teste of the summons to parlia-
ment, and for twenty days before and after the session.
But that period has now, as to all common process
but arrest, been taken away by statute.' The privUege
of the members of the house of commons from arrest
b for forty days after every prorogation, and for forty
days before the next appointed meeting, which in
effect is as long,* as the pariiament lasts, it seldom
being prorogued for more than four score days, at a
time.^ In case of a xlissolution of parliament, it does
not appear, that the privilege is confined to any precise
time ; the rule being, that the party is entitled to it for
a convenient time, redeundo. ^
§ 859. The privilege of members of parliament for-
merly extended also to their servants and goods, so
that they could not be arrested. But so far, as it went to
obstruct the ordinary course of justice in the British
courts, it has since been restrained.® In the mem-
l JeffersoD's Manual, § 3. ^ Id. § a
3 Com. Dig. Parliament, D. 17; 1 Black. Comm. 165, 166.
4 1 Black. Comm. 165 ; Com. Dig. Parliament, D. 17.
5 Holiday V. Pitt, 2 Str. R. 985 ; S. C. Cas. Temp. Hard. 28 ; 1 Black.
Comm. 165 ; Christian's note, 21 ; Barnard v. Mordaunly 1 Kenyon R-
125.
6 Com. Dig. PaHiamea^D. 17; 1 Black. Comm. 165; Jefferson's
Manual, § 3.
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CH. XII.] PRIVILEGES OF COJXGKESB. 327
bcrs of congress, the privilege is strictly personal, and
does not extend to their servants or property. It is
also, in all cases confined to a reasonable time, eumfo,
marandOf et redeundoj mstead of being limited by a pre-
cise number of days. It was probably from a survey
of the abuses of privilege, which for a long-time defeat^
ed in England the purposes of justice, that the consti-
tution has thus marked its boundary with a sedulous
caution.^
§ 860. The eflfect of this privilege is, that the arrest
of the member is unlawful, and a trespass ab initio, for
which he may madntsdn an action, or proceed against
the aggressor by way of indictment He may also be
discharged by motion to a court of justice, or upon a
writ of habeas corpus ;* and the arrest may also be pun-
ished, as a fcontempt of the house.'
§ 861. In respect to the time of going and returning,
the law is not so strict in point of time, as to require
the party to set out immediately on his return ; but
allows him time to settle his private affairs, and to pre-
pare for his journey. Nor does it nicely scan his road^
nor is his protection forfeited, by a littie deviation from
that, which is most direct ; for it is supposed, that some
superior convenience or necessity directed it.* The
privilege from arrest takes place by force of the elec-
tion, and before the member has taken his seat, or is
sworn.*
§ 862. The exception to the privilege is, that it shall
not extend to " treason, felony, or breach of the peace.'*
1 Jefferson's Manual, § 3.
« Id. § 3 ; 2 Str. 990 ; 'i Wilson's R. 151 ; Cas. Temp. Hard. 28.
3 1 Black. Coram. 164, 165, 166 ; Com. Dig. Parliameni, D. 17 ; Jef-
ferson's Manual, § 3.
4 Jefferson's Manual, § 3; 2 Str. R. 986, 987.
^ Jefferson's Manual, § 3 ; but see Com. Dig. PariiamerUy D. 17.
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328 CONSTITUTION OP TH£ U. STATES. [BOOK HI.
These words are the same as those, in which the excep-
tion to the privilege of parliament is usuaUy expressed
at the common law, and was doubtless borrowed from
that source.^ Now^ as all crimes are offences against
the peace, the phrase "breach of the peace" would
seem to extend to all indictable offences, as well
those, which are, in fact, attended with force and
iddence, as those, which are only constructive breaches
of the peace of the government, inasmuch as they vio-
tete its good order.* And so in truth it was decided
in parliament, in the case of a seditious Ubel, published
by a member, (Mr. Wilkes,) against the opinion of Lord
Camden and the other judges of the Court of Common
Pleas ;' and, as it will probably now be thought, since
the party spirit of those times has subsided, with entire
good sense, and in furtherance of public justice. * It
would be monstrous, that any member should protect
himself from arrest, or punishment for a libel, often a
crime of the deepest malignity and mischief, while he
would be liable to arrest, for the pettiest assault, or the
most insignificant breach of the peace.
^ 863. The next great and vital privilege is the free-
dom of speech and debate, without which all other
privileges would be comparatively unimportant, or inef-
fectual^ This privilege also is derived from the prac-
tice of the British parliament, and was in full exercise
in our colonial legislatures, and now belongs to the leg-
islature of every state in the Union, as matter of consti-
tutional right. In the British parliament it is a claim of
immemorial right, and is now farther fortified by an act
1 4 Inst 25;* 1 Black. Comm. 165; Com. Dig. Parliament^ D. 17.
s 1 Black. Comm. 166.
3 JUx V. Wilkei, 3 Wilson's R. 151.
4 See 1 Black. Comm. 166, 1Q7.
ft See 9 WilMo'b Law Lect 156.
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€H. XII.] PRITILEGES OF CONGRESS. 329
of parliament ; and it is always particularly demanded
of the king in person by the speaker of die house of
commons, at the opening of. every new parliament^
But this privilege is strictly confined to things done in
the course of parliamentary proceedings, and does not
cover things done beyond the place and limits of duty.*
Therefore, although a speech delivered in the house of
commons is privileged, and the member cannot be
questioned respecting it elsewhere ; yet, if he publishes
his speech, and it contains libellous matter, he is liable
to an action and prosecution therefor, as in common
cases of libel^ And the same principles seem applica-
ble to the privilege of debate and speech in congress.
No man ought to have a right to defame others under
colour of a performance of the duties of his office. And
if he does so in the actual discharge of his duties in
congress, that furnishes no reason, why he should be
enabled through the medium of the press to destroy
the reputation, and invade the repose of other citizens.
It is neither within the scope of his duty, nor in further-
ance of public rights, or public policy. Every citizen
has as good a right to be projected by the laws from
malignant scandal, and false charges, and defamatory
imputations, as a member of congress has to utter them
in his seaL If it were otherwise, a man's character
might be taken away without the possibility of redress;
either by the malice, or indiscretion, or overweaning
self-conceit of a member of congress.* It is proper,
however, to apprise the learned reader, that it has
been recently denied in congress by very distinguished
lawyers, that the privilege of speech and debate in con-
1 1 Black. Comm. 164, la^. ^ Jefferson's Manual, § a
3 The King v. Creevy, 1 Maule & Selw. 27.3.
4 See the reasoning in Cqffin v. Cqffin, 4 Mass. R. 1.
VOL. II. 42
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330 CONSTITUTION OF THK V. STATES. [BOOK III.
gress does not extend to publication df his speech. And
they ground themselves upon an important distinction
arising from the actual differences between English and
American legislation. In the former, the publication of
the debates is not strictly lawful, except by license of the
house. In the latter, it is a common right, exercised
and supported by the direct encouragement of the body.
This reasoning deserves a very attentive examination.^
^ 864. The next clause regards the disqualifications
of members of congress ; and is as follows : " No sen-
**ator or representative shall, during the time, for which
"he was elected, be appointed to any civil oflSce under
•* the authority of the United States, which shall have
" been created, or the emoluments whereof shall have
•* been increased, during such time. And no person,
** holding any office under the United States, shall be
" a member of either house of congress during his con-
"tinuance in oflSce.** This clause does not appear to
have met with any opposition in the convention, as to
the propriety of some provision on the subject, the
principal question being, as to the best mode of expres-
smg the disqualifications.' It has been deemed by one
commentator an admirable provision against venality,
though not perhaps sufficiently guarded to prevent
evasion.* And it has been elaborately vindicated by
another with uncommon earnestness.^ The reasons
for excluding persons from offices, who have been con-
cerned in creating them, or increasing their emoluments,
1 Mr. Doddridge's Speech in the case of Hoaston, in May, 1832; Mr.
Burg^es's Speech, n>id.
9 Joarn. of Convention, 314, 319, 330, .'V32, 323.
3 1 Tack. Black. Comm. App. 198, 214, 215, 375^
4 Rawle on the Const ch. 19, p. 184, dLC. ; 1 Wilson's Law Lect 446
to 449.
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CH. XII.] PRIVILEGES OF COITOIUCSS. 331
are to take away, as far as possible, any improper bias in
the vote of the representative, and to secure to the con-
stituents some solemn pledge of his disinterestedness.
The actual provision, however, does not go to the ex-
tent of the principle ; for his appointment is restricted
only "during the time, for which he was elected;**
thus leaving in full force every influence upon his mind,
if the period of his election is short, or the duration of
it is approaching its natural termination. It has some-
times been matter of regret, that the disqualification had
not been made co-extensive with the supposed mischief;
and thus have for ever excluded members from the pos-
session of offices created, or rendered more lucrative
by themselves.^ Perhaps there is quite as much wis-
dom in leaving the provision, where it now is.
^ 865. It is not easy, by any constitutional or legis-
lative enactments, to shut out all, or even many of the
avenues of undue or corrupt mfluence upon the human
mind. The great securities for society — those, on
which it must for ever rest in a free government — are
responsibility to the people through elections, and per-
sonal character, and purity of principle. Where these
are wantmg, there never can be any solid confidence,
or any deep sense of duty. Where these exist, they
become a sufficient guaranty against all sinister influ-
ences, as well as all gross offences. It has. been re-
marked with equal profoundness and sagacity, that, as
there is a degree of depravity in mankmd, which re-
quires a certain degree of circumspection and distrust;
so there are other qualities m human nature, which
justify a certain portion of esteem and confidence.
Republican government presupposes the existence of
1 Rawle on the Constitution, cli. 19. See 1 Tuck. Black. Comro. App.
375.
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332 CONSTITUTION OF THE U. STATES. [BOOK 111.
these qualities in a higher form, than any other.^ It
might well be deemed harsh to disqualify an individual
from any oflSce, clearly required by the exigencies of
the country, simply because he had done his duty.*
And, on the other hand, the disqualification might ope-
rate upon many persons, who might find their way into
the national councils, as a strong inducement to post-
pone the creation of necessary offices, lest they should
become victims of their high discharge of duty. The
chances of receiving an appointment to a new office are
not so many, or so enticing, as to bewilder many minds ;
and' if they are, the aberrations from duty are so easily
traced, that they rarely, or never escape the public
reproaches. And if influence is to be exerted by the
executive for improper purposes, it will be quite as easy,
and in its operation less seen, and less suspected, to
give the stipulated patronage in another forn^ either of
office, or of profitable employment, already existmg.
And even a general disqualification might be evaded by
suffering the like patronage silently to fall into the hands
of a confidential friend, or a favourite chUd or relative.
A dishonourable traffic m votes, if it should ever be-
come the engine of party or of power in our country,
would never be restrained by the slight network of
any constitutional provisions of this sort It vi/ould
seek, and it would find its due rewards in the general
patronage of the government, or m the possession of
the offices conferred by the people, which would bring
emolument, as well as influence, and secure power by
gratifymg favourites. The history of our state govern-
ments (to go no farther) will scarcely be thought by
any ingenuous mind to afford any proofs, that the ab-
i The Federalist, Na 55. < 2 ElUot's Debates, 279.
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CH. XII.] PRIVILEGES OF CONGRESS. 333
sence of such a disqualification has rendered state
legislation less pure, or less intelligent ; or, that the ex-
istence of such a disqualification would have retarded
one rash measure, or introduced one salutary scruple
into the elements of popular or party strife. History,
which teaches us by examples, establishes the truth
beyond all reasonable question, that genuine patriotism
is too lofty in its honour, and too enlightened m its ob-
ject, to need such checks ; and that weakness and vice,
the turbulence of faction, and the meanness of avarice,
are easily bought, notwithstandmg all the efforts to
fetter, or ensnare them.
^ 866. The other part of the clause, which disquali-
fies persons holding any office under the United States
fi'om being members of either house during their con-
tinuance in office, has been still more universally ap-
plauded; and has been vindicated upon the highest
grounds of public policy. It is doubtless founded m a
deference to state jealousy, and a sincere desire to ob-
viate the fears, real or imaginary, that the general gov-
ernment would obtam an undue preference over the
state governments.* It has also the strong recommen-
dation, that it prevents any undue influence from office,
either upon the party himself, or those, with whom he
is associated in legislative deliberations. The universal
exclusion of all persons holdmg office is (it must be
admitted) attended with some inconveniences. The
heads of the departments are, in fact, thus precluded
from proposing, or vindicating their own measures in
the face of the nation in the course of debate ; and are
compelled to submit them to other men, who are either
imperfectiy acquainted with the measures, or are indif-
1 See Rawle on the ConstitutioD, ch. 19 ; The Federalist, No. 56.
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334 COirSTJTUTION of the 17. STATES. [BOOK III.
ferent to their success or Mure. Thus, that open and
public responsibility for measures, which properly be-
longs to the executiye in all governments, and espe-
cially in a republican government, as its greatest secu-
rity and strength, is completely done away, The ex-
ecutive is compelled to resort to secret and unseen in-
fluence, to private interviews, and private arrangements,
to accomplish its own impropriate purposes ; instead of
proposing and sustainmg its own duties and measures
by a bold and manly appeal to the nation in the face of
its representatives. One consequence of this state of
things is, that there never can be traced home to the
executive any responsibility for the measures, which
are planned, and carried at its suggestion. Another
consequence will be, (if it has not yet been,) that mea-
sures will be adopted, or defeated by private intrigues,
political combinations, irresponsible recommendations,
and all the blandishments of office, and all the deaden-
ing weight of silent patronage. The executive will
never be compelled to avow, or to support any opinions.
His ministers may conceal, or evade any expression of
thdr opinions. He will seem to follow, when m fact
he directs the opinions of congress. He will assume
the air of a dependent instrument, ready to adopt the
acts of the legislature, when in fact his spuit and his
wishes pervade the whole system of legislation. If
corruption ever eats its way silently into the vitals of
this republic, it will be, because the people are unable
to bring responsibility home to the executive through
hb chosen ministers. They will be betrayed, when
their suspicbns are most lulled by the executive, under
the disguise of an obedience to the will of congress.
If it would not have been safe to trust the heads of de-
partments, as representatives, to the choice of the peo-
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€H. XII.] PRIVILEOSS OF COKGRS88. 836
pie, as their constituents, it would have been at least
some gdn to have allowed them a seat, like territorial
delegates, in the house of representatives, where they
might freely debate without a title to vote. In such an
event, their influence, whatever it would be, would be
seen, and felt, and understood, and on that account
would have involved little danger, and more searchmg
jealousy and opposition ; whereas, it is now secret and
silent, and from that very cause may become over-
whelming.
§ 867. One other reason in favour of such a right is,
that it would compel the executive to make appoint-
ments for the high departments of government, not
from personal or party favourites, but from statesmen
of high public character, talents, experience, and ele-
vated services ; from statesmen, who had earned public
favour, and could command public confidence. At
present, gross mcapacity may be concealed under oflS-
cial forms, and ignorance silently escape by shifting the
labours upon more intelligent subordinates m oflSce.
The nation would be, on the other plan, better served ;
and the executive sustained by more masculine elo-
quence, as well as more liberal learning.
^ 868. In the British parliament no restrictions of
the former sort exist, and few of the latter, except such
as have been created by statute.* It is true, that an
acceptance of any office under the crown is a vacadon
of a seat in parliament This is wise ; and secures the
people from being betrayed by those, who hold office,
and whom they do not choose to trust. But generally,
they are re-eligible ; and are entitled, if the people so
choose, again to hold a seat in the house of commons,
1 Seo 1 Black. Comm. 175, 176.
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336 CONSTITUTION OF THE U. STATES. [BOOK III.
notwithstanding their official character.^ The conse-
quence is, that the ministers of the crown assume an
open public responsibility ; and if the representation of
, the people in the house of commons were, als it is under
the national government, founded upon a uniform rule,
by which the people might obtain their full share of the
government, it would be impossible for the ministry to
exercise a controlling influence, or escape (as in Amer-
ica they may) a direct palpable responsibility. There
can be no danger, that a free people will not be suffi-
ciently watchful over their rulers, and their acts, and
opinions, when they are known and avowed ; or, that
they will not find representatives in congress ready to
oppose improper measures, or sound the alarm upon
jarbitrary encroachments. The real danger is, when
the mfluence of the rulers is at work in secret, and as-
sumes no definite shape ; when it guides with a silent
and irresistible sway, and yet covers itself under the
forms of ^£^il|r opinion, or independent legislation ;
when it dl^^othing, and yet accomplishes every thing.
^ 869. Such is the reasoning, by which many en-
lightened statesmen have not only been led to doubt,
but even to deny the value of this constitutional dis-
qualification. And even the most strenuous advocates
of it are compelled so far to admit its force, as to con-
cede, that the measures of the executive government,
so far as they fall withm the immediate department of
a particular officer, might be more directly and fully
explained on the floor of the house.' Still, however,
the reasoning from the Bridsh practice has not been
deemed satisfactory by the public ; and the guard in-
1 1 Black. Comm. 175, 176, Christian's note, S9.
3 Rawle on the Constitution, ch. 19. p. 187.
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€H. XII.} PRIYILEOBS OF CONGRESS. 337
terposed by the constitution has been received with
general approbation, and has been thought to have
worked well during our experience under the national
government^ Indeed, the strongly marked parties in
the British parliament, and their consequent dissensions
have been ascribed to the non-existence of any such
restraints; and the progress of the influence of the
crown, and the supposed corruptions of legislation, have
been by some writers traced back to the same original
blemish,* Whether these inferences are borne out by
historical facts, is a matter, upon which different judg-
ments may arrive at different conclusions ; and a work^
like the present, is not the proper place to discuss
them.
1 Mr. Rawle's remarks in his Treatise od Constitutional Law,(ch. 19,)
are as full on this point, as can probably be found. See also The Fed-
eralist, No. 55 ; 1 Tucker's Black. Comro. App. 198, 214, 215 ; 2 £Uiot'8
Debates, 278, 279, 280, 281, 282 ; 1 Wilson's Law Lect 446 to 44a
» 1 WUson'B Law Lect 446 to 449.
VOL. II. 43
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838 CONSTITUTIOH OF THE V. STATES. [BOOK III.
CHAPTER XHL
MODE OF PASSING LAWS. PRESIDENT'S NEGATIYE.
§ 870. The seventh section of the first article treats
of two important subjects, the right of originating reve-
nue bills, and the nature and extent of the president's
negative upon the passing of laws.
§871. The first clause declares — "All bills for
^raising revenue shall originate in the house of repre-
^ sentatives ; but the senate may propose, or concur
** with amendments, as on other bills/' This provision,
so far as it regards the right to originate what are tech-
nically called " money bills," is, beyond all question,
borrowed from the British house of commons, of which
it is the ancient and indisputable privilege and right,
that all grants of subsidies and parUamehtary aids shall
begin in their house, and are first bestowed by them,
although their grants are not effectual to all intents and
purposes, until they have the assent of the other two
branches of the legislature.* The general reason given
for this privilege of the house of commons is, that the
supplies are raised upon the body of the people ; and
therefore it is proper, that they alone should have the
right of taxing themselves. And Mr. Justice Black-
stone has very correctly remarked, that this reason
would be unanswerable, if the commons taxed none
but themselves. But it is notorious, that a very large
share of property is in possession of the lords ; that this
property is equally taxed, as the property of the com-
1 1 Black. Comm. 169.
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OH. XIII.] MODS OF PASSING LAWS. 339
mons ; and therefore the commons, not being the sde
persons taxed, this cannot be the reason of their having
the sole right of raising and modelling the supply. The
true reason seems to be this. The lords being a per-
manent hereditary body, created at pleasure by the
king, are supposed more liable to be influenced by the
crown, and when once influenced, more likely to con-
tinue so, than the commons, who are a temporary elec-
tive body, freely nominated by the people. It would,
therefore, be extremely dangerous to give the lords any
power of framing new taxes for the subject It is suffi-
cient, that they have a power of rejecting, if they think
the commons too lavish or unprovident in their grants.^
^ 872. This seems a very just account of the matter,
widi reference to the spirit of the British constituticm ;
though a difierent explanation has been deduced from
a historical review of the power. It has been asserted
to have arisen from the instructions from time to time
given by the constituents of the commons, (whether
county, city, or borough,) as to the rates and assess-
ments, which they were respectively willing to bear
and assent to ; and from the aggregate it was easy for
the commons to ascertam the whole amount, which the
commonalty of the whole kingdom were willing to
grant to the king.' Be this as it may, so jealous are
the commons of this valuable privilege, that herein they
will not suffer the other house to exert any power, but
that of rejecting. They will not permit the least altera-
tion or amendment to be made by the lords to the
mode of taxing the people by a money bill ; and under
1 1 Black. Comm. 169 ; De Lolme on Constitution, ch. 4, 8, p. 66, S4,
85, and note.
9 3 Wilson's Law Lect 161, 162, 163, citing MiDar on Constitation,
398. Bat see 1 WUson's Law Lect 444, 445.
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340 CONSTITUTION OF THE U. STATES. [BOOK lU.
«
this appellation are included all bills, by which money I
is directed to be raised upon the subject for any pur-
pose, or in any shape whatsoever, either for the exi-
gencies of the government, and collected from the king-
dom in general, as the land tax, or for private benefit,
and collected in any particular district, as turnpikes,
parish rates, and the like.* It is obvious, that this
power might be capable of great abuse, if other bills
were tacked to such money bills ; and accordingly it
was found, that money biUs were sometimes tackell
to favourite measures of the commons, with a view to
ensure their passage by the lords. This extraordinary
use, or rather perversion of the power, would, if suffer-
ed to grow into a common practice, have completely
destroyed the equilibrium of the British constitution,
arid subjected both the lords and the kmg to the power
of the commons. Resistance was made from time to
time to this unconstitutional encroachment; and at
length the lords, with a view to give permanent effect
to their own rights, have made it a standing order to
reject upon sight all bills, that are tacked to money
bills.* Thus, the privilege is mamtamed on one side,
and guarded against undue abuse on the other.
^ 873. It will be at once perceived, that the same
reasons do not exist in the same extent, for the same
exclusive right in our house of representatives in re-
gard to money bills, as exist for such right m the Brit-
ish house of commons. It may be fit, that it should
possess the exclusive right to originate money bills ;
since it may be presumed to possess more ample means
of local information, and it more directly represents the
opmions, feelings, and wishes of the people ; and, being
X 1 Black. Comm. 170, and Christian's Note, (26.)
9 De Lolme oo Constitution, ch. 17, p. 381, ^&L
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CM. XIIU] MODE OF PASSIlfG LAWS. 34L
directly dependent upon them for support, it will be
more watchful and cautious in the imposition of taxes,
than a body, which emanates exclusively from the
states in their sovereign political capacity.^ But, as
the senators are in a just sense equally representatives
of the people, and do not hold their offices by a per-
manent or hereditary title, but periodically return to the
common mass of citizens ; * and above all, as direct
taxes are, and must be, apportioned among the states
according to their federal population ; and as all the
states have a distinct local interest, both as to the
amount and nature of all taxes of every sort, which are
to be levied, there seems a peculiar fitness in giving to
the senate a power to alter and amend, as well as to
concur with, or reject all money bills. The due influ-
ence of all the states is thus preserved; for 'otherwise
it might happen, from the overwhelmmg representation
of soma of the large states, that taxes might be levied,
which would bear with peculiar severity upon the in-
terests, either agricultural, commercial, or manufactur-
ing, of others being the minor states ; and thus the
equilibrium intended by the constitution, as well of
power, as of interest, and influence, might be practi-
cally subverted.
§ 874. There would also be no small inconvenience
in excluding the senate from the exercise of this power
of amendment and alteration ; smoe if any, the slightest
modification were required in such a bill to make it
either palatable or just, the senate would be compelled
to reject it, although an amendment of a single line
^ 2 Wilson's Law Lect 163, 164; Rawle on Constitution, ch. 6;
4 Elliot's Debates, 141.
9 1 Tucker's Black. Comm. App. 215 ; 3 Wilson's Law Lect. 169,
164; Rawle on Constitution, ch. 6; 4 Elliot's Debates, 141.
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342 coNSTiTUTioir of the u. states, [book m.
might make it entirely acceptable to both houses.^
Such a practical obstruction to the legislation of a free
government would far outweigh any supposed theoreti-
cal advantages from the possession or exercise of an
exclusive power by the house of representatives. In-
finite perplexities, ^md misunderstandings, and delays
would clog the most wholesome legislation. Even the
annual appropriation bills might be in danger of a mis-
carriage on these accounts ; and the most painful dis-
sensions might be introduced.
§ 875. Indeed, of so litUe importance has the exclu-
sive possession of such a power been thought in the
state governments, that some of the state constitutions
make no difference, as to the power of each branch
of the legislature to originate money bills. Most of
them contain a provision similar to that m the constitu-
tion of the United States ; and in those states, where
the exclusive power formerly existed, as, for instance,
in Yfrgmia and South-Carolina, it was a constant source
of difficulties and contentions.' In the revised consti-
tution of South-Carolina, (in 1790,) the provision was
altered, so as to conform to the clause in the constitu-
tion of the United States.
^ 876. The clause seems to have met vnth no seri-
ous opposition m any of the state conventions ; and in-
deed could scarcely be expected to meet with any op-
position, except in Virginia; smce the other states
were well satisfied with the principle adopted in their
own state constitutions ; and in Vii^mia the clause cre-
ated but little debate.'
§ 877. What bills are properiy "bills for raismg rev-
enue,'* in the sense of the constitution, has been matter
1 2 Elliot'8 Debates, 283, 284. s id. 3 id.
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OH. XIII.] president's kxoatiye. 343
of some discussion. A learned commentator supposes^
that every bill, which indirectly or consequentially may
raise reyenue, is, within the sense of the constitution, a
revenue bilL He therefore thinks, that the bills for
establishing the post-office, and the mmt, and regulat-
ing the value of foreign coin, belong to this class, and
ought not to have originated (as in fact they did) in the
senate.^ But the practical construction of the constitu*
tion has been agamst his opinion. And, indeed, the
hbtory of the origin of the power, already suggested,
abundantly proves, that it has been confined to bills to
levy*taxes in the strict sense of the words, and has not
been understood to extend to bills for other purposes,
which may incidentally create revenue.* No one sup-
poses, that a bill to sell any of the public lands, or to
sell public stock, is a bill to raise revenue, in the sense
of the constitution. Much less would a bill be so
deemed, which merely regulated the value of foreign or
domestic ccHns, or authorized a discharge of insolvent
debtors upon assignments of their estates to the United
States, giving a priority of payment to the United
States in cases of insolvency, although all of them might
incfdentally bring revenue into the treasury.
^ 878. The next clause respects the power of the
president to approve, and negative laws. In the con-
vention there does not seem to have been much diver-
sity of opmion on the subject of the propriety of giving
to the president a negative on the laws. The principsd
points of discussion seem to have been, whether the
negative should be absolute, or qualified ; and if the
latter, by what number of each house the bill should be
subsequendy passed, in order to become a law ; and
1 Tocl^er'fl Black. Comm. App. 261, and note,
s See 2 Elliot's Debates, 283, 284.
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344 CONSTITUTION OF THE U. STATES. [BOOK III.
whether the negative should in either case be exclu-
sively vested in the president alone, or in him jointiy with
some other department of the government The pro-
position of a qualified negative seems to have obtained
general, but not universal support, having been carried
by the vote of eight states against two.^ This being
settled, the question, as to the number, was at first
unanimously carried in the affirmative in favour of two
thh'ds of each house; at a subsequent period it was
altered to three fourths by a vote of six states against
four, one being divided ; and it was ultimately restored
to the two thirds, without any apparent struggle.^* An
effort was also made to unite the supreme national ju-
diciary with the executive in revising the laws, and
exercising the negative. But it was constantly resisted,
being at first overruled by a vote of four states against
three, two being divided, and finally rejected by the
vote of eight states against three.'
§ 879. Two points may properly arise upon this
subject. First, the propriety of vestmg the power in
the president ; and secondly, the extent of the legisla-
tive check, to prevent an undue exercise of it. The
former also admits of a double aspect, viz. whether the
negative should be absolute, or should be qualified.
An absolute negative on the legislature appears, at
first, to be the natural defence, with which the execu-
tive magistrate should be armed. But in a fi^e gov-
ernment, it seems not altogether safe, nor of itself a
sufficient defence. On ordinary occasions, it may not
be exerted with the requisite iSinnness ; and on extra-
ordinary occasions, it may be perfidiously abused. It
1 Journal of the Convention, 97.
9 Journal of the Convention, 195, 253, 254, 355.
3 Journal of the Convention, 69, 96, 195, 25a
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CH. XIII.] PR£SlD£in''s KEGATIYB. d46
is true, that the defect of such a^ absolute negative has
a tendency to weaken the executive department But
this may be obviated, or at least counterpoised, by
other arrangements in the government ; such as a quali-
fied connexion with the senate in making treaties and
appointments, by which the latter, being a stronger de-
partment, may be led to support the constitutional rights
of the former, without bemg too much detached from
its own legislative functions.^ And the patronage of
the executive has also some tendency to create a coun-
teracting influence in aid of his independence. It is
true, that in England an absolute negative is vested in
the king, as a branch of the legislative power ; and he
possesses the absolute power of rejecting, rather than
of resolving. And this is thought by Mr. Justice Black-
stone and others, to be a most important, and indeed
mdispensable part of the royal prerogative, to guard
against the usurpations of the legislative authority.*
Yet in pomt of fact this negative of the kmg has not
been once exercised since the year 1692;' a fact,
which can only be accounted for upon one of two sup-
positions, either that the influence of the crown has
prevented the passage of objectionable measures, or that
the exercise of the prerogative has become so odious,
that it has not been deemed safe to exercise it, except
upon the most pressing emergencies.^ Probably both
*
1 The Federalist, No. 51. ^ I Black. Comm. 154.
3 De Lolme on Constitution, ch. 17, p. 390, 391 ; 1 Kent's ComnL
Lectl],i>. 226.
4 1 WUson's Law Lect 448, 449 ; The Federalist, No. 73 ; Id. No. 69 ;
1 Kent's Corora. Lect 1 1, p. 226.— Mr. Burke, in his letter to the sher-
iffs ofBristol,* has treated this subject with his usual masterly power.
** The king's negative to bills," says he, '< is one of the most undisputed of
the royal prerogatives ; and it extends to all cases whatsoever. I am
♦In 1777.
VOL. II. 44
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346 CONSTITUTION Or THE U. STATES. [BOOK in.
motives have alternately prevailed in regard toi bills,
which were disagreeable to the crown ; ^ though, for
the last half century, the latter has had the most uni*
form and decisive operation. As the house of com-
mons becomes more fmd more the representative of the
popular opinion, the crown will have less and less in-
ducement to hazard its own uifluence by a rejection of
any favourite measure of the people. It will be more
likely to take the lead, and thus guide and moderate,
instead pf resisting the commons. And, practically
speaking, it is quite problematical, whether a qualified
negative may not hereafter in England become a more
efficient protection of the crown, than an absolute nega*
tive, which makes no appeal to the other legislative
bodies, and consequently compels the crown to bear
the exclusive odium of a rejection.* Be this a& it may,
the example of England furnishes, on this pomt, no
sufficient authority for America. The whole structure
of our government is so entirely different, and the
elements, of which it is composed, are so dissimilar
from that of England, that no argument can be drawn
firom the practice of the latter, to assist us m a just
arrangement of the executive authority.
^ 880. It has been observed by Mr. Chancellor
Kent, with pithy elegance, that the peremptory veto of
the Roman Tribunes, who were placed at the door of
the Roman senate, would not be reconcileable with the
fkt from certain, that if several laws, which I know, bad fallen under
the stroke of that sceptre, that the public would have had a very heavy
loss. But it is not the propriety of the exercise, which is in question.
The exercise itself is wisely forborne. Its repose may be the preser-
vation of its existence ; and its exiiitehce may be the means of saving
the constiution itself, on an occasion worthy of bringing it forth."
1 1 Tuck. Black. Comm. App. "iSS, 356 ; 1 Kent's Comm. Lect 11, p. 996.
9 See Uie reasoning in The Federalist, No. 73 ; Id. No. 51 ; 1 WiL
son's Law Lect 448» 449.
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CH. XIII.] PRXflPEJfT't NEOATIYS. 847
spirit, of deliberation and independence, which dis-
tinguishes the councils of modern times. The French
constitution of 1701, a laboured and costly fabric, on
which the philosophers and statesmen of France ex-
hausted all their ingenuity, and which was prostrated
in the dust in the course of one year from its existence^
gave to the king a negative upon the acts of the legis-
lature, with some feeble limitations. Every bill was
to be presented to the king, who might refuse his as-
sent ; but if the two following legislatures should suc-
cessively present the same bill in the same temtis, it
was then to become a law. The constitutional negative^
given to the president of the United States, appears to
be more wisely digested, than any of the examples,
which have been mentioned.^
^881. The reasons, why the president should pos-
sess a qualified negative, if they are not quite obvious,
are, at least, when fairiy expounded, entirely ^sadsfac-
tory. In the first place, there is a natural tendency in
the legislative department to mtrude upon the rights,
and to absorb the powers of the other departments of
government.^ A mere parchment delineation of the
boundaries of each is whoQy insufficient for the pro-
tection of the weaker branch, as the executive unques-
tionably is; and hence there arises a constitutional
necessity of arming it with powers for its own defence*
If the executive^did not possess this qualified negative,
he would gradually be stripped of all his authority, and
become, what it is well known the governors of some
states are, a mere pageant and shadow of magistracy.'
1 1 Kent's Comm. Lect 11, p. 226, 227.
s 1 Kent's Comm. Lect 11, p. 225, 230; The Federalist, Na 73; Id.
No. 51.
3 The Federalist, No. 51, 73 ; 1 Tuck. Black. Comm. App. 225, 329 ;
1 WilM>n's Law Lect 448, 449 ; 1 Kent's Comm. Lect 11, p, 225, 226.
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348 CONSTITUTION or the U. STAT£S. [book III.
, § 882. In the next place, the power is important, as
an additional security against the enactment of rash,
immature, and improper laws. It establishes a saluta-
ry check upon the legislative body, calculated to pre-
serve the community against the effects of faction,
precipitancy, unconstitutional legislation, and tempora-
ry excitements, as well as political hostility.^ It may,
indeed, be said, that a single man, even though he be
president, cannot be presumed to possess more wis-
dom, or virtue, or experience, than what belongs to a
number of men. But this furnishes no answer to the
reasoning. The question is not, how much wisdom, or
virtue, or experience, is possessed by either branch of
the government, (though the executive magistrate may
well be presumed to be eminently distinguished in all
these respects, and therefore the choice of the people ;)
but whether the legislature may not be misled by a
love of power, a spirit of faction, a political impulse, or
a persuasive influence, local or sectional, which, at the
same time, may not, from the difference in the election
and dujdes of the executive, reach him at all, or not
reach him in the same degree. He will always have
a primary inducement to defend his own powers ; the
legislature may well be presumed to have no desire to
favour them. He will have an opportunity soberly to
examine the acts and resolutions passed by the legisla-
ture, not having partaken of the feehngs or combma-
tions, which have procured their passage, and thus
correct, what shall sometimes be wrong from haste and
inadvertence, as well as design.^ His view of them,
if not more vnse, or more elevated, will, at least, be
1 The Federalist, No. 73 ; 1 Wilson's Law Lect 448, 449, 45a
9 The Federalist, No. 7a
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CH. XIII.] presisdbnt's negatiys. 349
I
independent, and under an entirely different responsi-
bility to the nation, from what belongs to them. He is
the representative of the whole nation in the aggregate ;
they are the representatives only of distinct parts ; and
sometimes of litde more than sectional or local interests.
^ 883. Nor is there any solid objection to this quali-
fied power.^ If it should be objected, that it may
sometimes prevent the passage of good laws, as well as
of bad laws, the objection is entitied to but Utde weight.
In the first place, it can never be effectually exercised,
if two thirds of both houses are in favour of the law ; and
if they are not, it is not so easily demonstrable, that
the law is either wise or salutary. The presumption
would rather be the other way ; or, at least, that the
utility of it was not unquestionable, or it would receive
the requisite support. In the next place, the great evil
of all free governments is a tendency to over-legislation,
and the mischief of inconstancy and mutability in the
laws forms a great blemish in the character and genius
of all free governments.* The injury, which may pos-
sibly arise from the postponement of a salutary law,
is far less, than from the passage of a mischievous one,
or fit)m a redundant and vacillating legislation.' In
the next place, there is no practical danger, that this
power would be much, if any, abused by the president.
The superior weight and influence of the legislative
body in a free government, and the hazard to the
weight and mfluence of the executive in a trial of
strength, afibrd a satisfactory security, that the power
will generally be employed with great caution ; and
that there will be more often room for a charge of
1 1 Tack. Black. Comm. 225, 324 ; 1 Kent's Comm. Lect 11, p. 225, 22&
« The Federalist, No. 73. 3 w.
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850 CONST^UTION OF THE V. STATCS. [bOOK III.
timidity, than of rashness in its exercise.^ It has been
ak*eady seen, that the British king, with all his sove-
reign attributes, has rarely mterposed this high prerog*
ative, and that more 'than a century has elapsed smce
its actual application. If from the offensive nature of
the power a royal hereditary executive thus indulges
serious scruples in its actual exercise, surely a repub*
lican president, chosen for four years, may be presumed
to be still more unwilling to exert it.^
^ 884. The truth is, as has been already hinted, that
the real danger is, that the executive will use the pow*
er too rarely. He will do it only on extraordinary oc-
casions, when a just regard to the public safety, or pub-
lic interests, or a constitutional obligation, or a necessity
of maintaining the appropriate rights and prerogatives
of his oflSce compels him to the step ; ' and then it
will be a solemn appeal to the people themselves from
their own representatives. Even within these narrow
limits the power is highly valuable ; and it will silendy
operate as a preventive check, by discouraging attempts
to overawe, or to control the executive. Indeed, one
of the greatest benefits of such a power is, that its in-
fluence is felt, not so much in its actual exercise, as in
its silent and secret energy as a prevendve. It checks
the intention to usurp, before it has ripened into an
act.
^ 885. It has this additional recommendation, as a
qualified negative, that it does not, like an absolute
negative, present a categorical and harsh resistance to
the legislative will, which is so apt to engender strife,
and nourish hostility. It assumes the character of a
mere appeal to the legislature itself and asks a revision
1 The Federalist, No. 7a > Id. s id.
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CH. XIII.] PBSSIDENT'8 keoatiyb. 361
of its own judgment^ It is in the nature, then, merely
of a rehearing, or a reconsideration, and involves noth-
ing to provoke rescntme^^t, or rouse pride. A president,
who might hesitate to defeat a law by an absolute veto,
might feel little scruple to return it for reconsideration
upon reasons and arguments suggested on the return.
If these were satisfactory to the legislature, he would
have the cheering support of a respectable portion of
the body in justification of his conduct If, on the other
hand, they should not be satisfactory, the concurrence
of two thirds would secure the ultimate passage of the
law, without exposing him to undue censure or reproach.
Even in such cases his opposition would not be with-
out some benefit. His observations would be cal-
culated to excite public attention and discussion, to lay
bare the grounds, and policy, and constitutionality of
measures ; * and to create a continued watchfulness, as
to the practical effects of thie laws thus passed, so as
that it might be ascertained by experience, whether his
sagacity and judgment were safer, than that of the legis-
lature.^ Nothing but a gross abuse of the power upon
frivolous, or party pretences, to secure a petty triumph,
or to defeat a wholesome restraint, would bring it into
contempt, or odium ; and then, it would soon be follow-
ed by that remedial justice from the people, in the ex-
ercise of the right of election, which, first or last, will
be found to follow with reproof, or cheer with applause,
the acts of their rulers, when passion and prejudice
have removed the temporary bandages, wUch have
blinded their judgment. I^ooking back upon the history
of the government for the last forty years, it will be
1 The Federalist, No. 7a
s Rawle on CoDstitution, ch. 6, p. 61, 62.
3 1 WilBon'8 Lect 449, 450; The Federalkt, No. 7a
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362 coNSTiTUTioir of the u. states, [book iu.
found, that the president's negative has been rarely
exerted ; and whenever it has been, no instance (it is
believed) has occurred, in which the act has been con-
curred in by two thirds of both houses. If the public
opinion has not, in all cases, susta'med this exercise of
the veto, it may be affirmed, that it has rarely been
found that the disapprobation has been violent, or
unqualified.
§ 886. The proposition to unite the Supreme Court
with the executive in the revision and quaUfied rejec-
tion of laws, failed, as has been seen, in the convention.^
Two reasons seem to have led to this result, and proba-
bly were felt by the people also, as of decisive weight
The one was, that the judges, who are the interpreters
of the law, might receive an improper bias from having
given a previous opinion in their revisory capacity.
The other was, that the judges, by being often associat-
ed with the executive, might be induced to embark too
far in the political views of that magistrate ; and thus a
dangerous combination might, by degress, be cemented
between the executive and judiciary departments. It
is impossible to keep the judges too distmct from any
other avocation, than that of expounding the laws ; and it
is peculiarly dangerous to place them in a situation to be
either corrupted, or influenced by the executive.^ To
these may be added another, which may almost be deem-
ed a corollary from them, that it would have a tendency
to take from the judges that public confidence in their
impartiality, independence, and integrity, which seem
indispensable to the due administration of public justice.
Whatever has a tendency to create suspicion, or pro-
voke jealousy, is mischievous to the judicial department
X Journal of ConventioD, 195, 253.
9 The Federalift, No. 73.
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CH. XIII.] president's negative. 368
Judges should not only be pure, but be believed to be
so. The moral influence of their judgments is weak-
ened, if not destroyed, whenever there is a general,
even though it be an unfounded distrust, that they are
guided by other motives in the discharge of their duties
than the law and the testimony. A free people have
no security for their liberties, when an appeal to the
judicial department becomes either illusory, or ques-
tionable.^
^ 887. The other point of inquiry is, as to the extent
of the legislative check upon the negative of the execu-
tive. It has been seen, that it was originally proposed,
that a concurrence of two thirds of each house shoqld
be required ; that this was subsequently altered to three
fourths ; and was finally brought back again to the origin-
al number.^ One reason against the three fourths seems
to have been, that it would aflford little security for any
effectual exercise of the power. The larger the num-
ber required to overrule the executive negative, the
more easy it would be for him to exert a silent and
secret influence to detach the requisite number in order
to carry his object Another reason was, that even,
supposing no such influence to be exerted, still, in a
great variety of cases of a political nature, and especially
such, as touched local or sectional interests, the pride
or the power of states, it would be easy to defeat the
most salutary measures, if a combination of a few states
* It is a remarkable circurostaDce in the history of Mr. Jefferson's
opinions, that he was decidedly in favour of associating the judiciary
with the executive in the exercise of the negative on laws, or of invest-
ing it separately with a similar power.* At a subsequent period his
opinion respecting the value and importance seems to have undergone
extraordinary changes.
» Journal of Uie Convention, p. 230,253, 254, 256.
* 9 JeflSsnon's Corrmp. S74 } 3 Pitk. SB3.
VOL. II. 45
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854 CONSTITUTION OP THE U. STATES. [bOOK UI.
could produce such a result. And the executive hnn-
self might, from his local attachments or sectional feel-
ings, partake of this common bias. In addition to this,
the departure from the general rule, of the right of a
majority to govern, ought not to be allowed but upon
the most urgent occasions ; and an expression of opinion
by two thirds of both houses in favour of a measure
certainly afforded all the just securities, which any wise,
or prudent people ought to demand in the ordinary
course of legislation ; for all laws thus passed might, at
any time, be repealed at the mere will of the majority.
It was also no small recommendation of the lesser num-
ber, that it offered fewer inducements to improper com-
binations, either of the great states, or the small states,
to accomplish particular objects. There could be but
one of two rules adopted m all governments, either,
that the majority should govern, or the minority should
govern. The president might be chosen by a bare
majority of electoral votes, and this majority might be
by the combination of a few large states, and by a mi-
nority of the whole people. Under such circumstances,
if a vote of three fourths were required to pass a law,
the voice of two thirds of the states and two thirds of
the people might be permanently disregarded during a
whole administration. The case put may seem strong ;
btrt it is not stronger, than the supposition, that two thirds
of both houses would be found ready to betray the solid
interests of their constituents by the passage of injuri-
ous or unconstitutional laws. The provision, therefore,
as it stands, affords all reasQnable security ; and pressed
farther, it would endanger the very objects, for which it
is introduced into the constitution.
^ 888. But the president might effectually defeat the
wholesome restraint, thus intended, upon his qualified
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CH. XIII.] president's hegative. 366
negative, if he might silently decline to act after a biH
was presented to him for approval or rejection. The
constitution, therefore, has wisely provided, that " if any
**bill shall not be returned by the president within ten
^ days (Sundays excepted) after it shall have been pre-
^ sented to him, it shall be a law, in like manner, as if
** he had signed it'' ^ But if this clause stood alone,
congress might, in like manner, defeat the due exer*
cise of his qualified negative by a termination of the
session, which would render it impossible fw the presi^
dent to return the bill It is therefore added, ^unless
" the congress, by their adjournment, prevent its retun^
^ in which case it shall not be a law."
§ 889. The remaming clause merely applies to
orderSy resohitianSj and votes, to which the concurrence
of both houses may be necessary ; and as to these, with
a single exception, the same rule is applied, as is by the
preceding clause appUed to bills. If this provision had
not been made, congress, by adopting the form of an
order or resolution, instead of a bill, might have efiec-
tually defeated the president's qualified negative in all
the most important portions of legislation.^
§ 890. It has been remarked by De Lohne, that m
most of the ancient fi*ee states, the share of the pec^
in the business of legislation was to approve or reject
the propositions, which were made to them, and to give
the final sanction to the laws. The functions of those
persons, or m general, those bodies, who were entrusted
with the executive power, was to prepare and frame
1 The orijpnal proposition in the convention was, that the bill should
he returned by the president in seven days. It was subsequently altered
to ten days by a vote of nine states against two.*
9 Journal of Convention, p. 230, 255.
* Joaroal of Convention, 9B0, 9&4, SB.
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356 CONSTITUTION OF THE U. STATES. [bOOK III.
the laws, and then to propose them to the people. In
a word, they possessed that branch of the. legislative
power, which may be called the initiativey that is, the
prerogative of putting that power into action. In the
first times of the Roman republic, this initiative power
was constantly exercised by the Roman senate. Laws
were m?ide p(^[mlijussu, ex authoritate sencUi ; and, even
m elections, the candidates were subject to the previous
approbation of the senate/ In modern times, in the
republics of Venice, Berne, and Geneva, the same
power is, in fact, exercised by a select assembly, before
it can be acted upon by the larger assembly of the citi-
zens, or their representatives.* He has added, that this
power is very useful, and perhaps even necessary, in
states of a republican form, for giving a permanence to
the laws, as well as for preventing political disorders
and struggles for power. At the same time, he is com-
pelled to admit, that this expedient is attended with
inconveniences of little less magnitude, than the evils it
is meant to remedy.* The inconveniences are certainly
great, but there are evils of a deeper character belong-
ing to such a system. The natural, nay, necessary
tendency of it is, ultimately to concentrate all power in
the initiative body, and to leave to the approving body
but the shadow of authority. It is in fact, though not •
in form, an oligarchy. And, so far from its being useful
in a republic, it is the surest means of sapping all its
best institutions, and overthrowing the public liberties,
by corruptmg the very fountains of legislation. De
Lolme praises it as a peculiar excellence of the British
monarchy. America, no less, vindicates it, as a funda-
mental principle in all her republican constitutions.
1 De Lolme, Bug. Const B. 2, ch. 4, p. 234, and note. 9 Id.
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CBU XII.] PROCEEDINGS OF C0KORE8S. 367
^891. We have thus passed through all the clauses
of the constitution respecting the structure and organi-
zation of the legislative department, and the rights,
powers, and privileges of the component branches sev-
erally, as well as in the aggregate. The natural order
of the constitution next leads us to the consideration of
the POWERS, which are vested, by the constitution, in
the legislative department Before, however, entering
upon this large and important inquiry, it may be useful
to state, in a summary manner, the ordinary course of
proceedings at each new session of congress, and the
mode, in which laws are usually passed, according to
the settled usages in congress, under the rules and
orders of the two houses. In substance, it does not
differ from the manner of conducting the like business
in the British parliament.^
^ 892. On the day appomted for the assembling of a
new congress, the members of each house meet in their
separate apartments. The house of representatives
then proceed to the choice of a speaker and clerk, and
any one member is authorized then to administer the
oath of office to the speaker, who then administers the
like oath to the other members, and to the clerk. The
like oath is administered by any member of the senate,
to the president of the senate, who then administers a
like oath to all the members, and the secretary of the
senate ; and this proceeding is had, when, and as often
as a new president of the senate, or member, or secre-
tary, is chosen.^ As soon as these preliminaries are
gone through, and a quorum of each house is present,
notice is given thereof to the president, who signifies
1 1 Tuck. Black. Coram. App.' 229, note; 1 Black. Coram. 181 ; Jeffer-
son's Manual, j)<w«m ; 2 Wilson's Law Lect 171 to i76,
a Actofl789,ch. 1.
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358 CONSTITUTION OF THE U. STATES. [BOOK III.
his intention to address them. This was formeriy done
by way of speech ; but is now done by a written
message, transmitted to each house, containing a gen-
eral exposition of the affairs of the nation, and a recom-
mendation of such measures, as the president may deem
fit for the consideration of congress. When the habit
was for the president to make a speech, it was in the
presence of both houses, and a written answer was
prepared by each house, which, when accepted, waa
presented by a committee. At present, no answer
whatsoever is given to the contents of the message.
And this change of proceeding has been thought, by
many statesmen, to be a change for the worse, since the
answer of each house enabled each party in the legis-
lature to express its own views, as to the matters in the
speech, and to propose, by way of amendment to the
answer, whatever was deemed more correct and more
expressive of public sentiment, than was contained in
either. The consequence was, that the whole policy
and conduct of the administration came undef solemn
review ; and it was animadverted on, or defended, with
equal zeal and independence, according to the different
views of the speakers in the debate ; and the final vote
showed the exact state of public opinion on all leading
measures. By the present practice of messages, this
facile and concentrated opportunity of attack or defence
is completely taken away ; and the attack or defence^ of
the administration is perpetually renewed at distant
intervals, as an incidental topic in all other discussions^
to which it often bears very slight, and perhaps no rela-
tion. The result is, that a great deal of time is lost in
collateral debates, and that the administration is driven
to defend itself in detaU, on every leading motion, or
measure of the session.^
1 Under President Washington and President John Adams, the prac-
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CH. XIII.] PROCE£I>Iir0S OF COITGRESS. 369
^893. A bill may be introduced by motion of a
member, and leave of the house ; or it may be intro-
duced by order of the house, on the report of a corb-
mittee ; or it may be reported by a committee. In
cases of a general nature, one day's notice is given of a
motion to bring in a bilL The bill, however introduc-
ed, is drawn out on paper, with a multitude of blanks
or void spaces, where any thing occurs, that is dubious^
or necessary to be settled by the house ; such, espe-
cially, as dates of times, sums of money, amount of pen-
alties, and limitations of numbers. It is then read a
j&rst time for information ; and if any opposition is made
to it, the question is then put, whether it shall be re-
jected. If no opposition is made, or if the quesdon to
reject is negatived, the bill goes to a second reading
without a question, and it is accordingly read a second
time at some convenient distance of time. Every bill
must receive three readings in the house previous to its
passage; and these readings are on different days,
unless upon a special order of the house to the con-
trary. Upon the second reading of a bill, the speaker
states it, as ready for commitment, or engrossment. If
committed, it is committed either to a select, or a stand*
ing committee, or to a committee of the whole house.
If to the latter, the house determme on what day. If
the bill is ordered to be engrossed, (that is, copied out
in a fair, large, round hand,) the house then appoint the
day, when it shall be read the tlurd time. Most of the
important bills are committed to a committee of the
whole house ; and every motion or proposition for a tax
(ff charge upon the people, and for a variation in the sum
tioe wad, to deliver speecheB. President Jefferson discontinued this
coarse, and substituted messages ; and this practice has been since in-
variably followed.
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360 CONSTITUTION OF THE V. STATES. [bOOK HI.
or quantum of a tax or duty, and for an appropriation of
money, is required first to be discussed in a committee
of the whole house. The great object of referring any
matter to a committee of the whole house is, to allow
a greater freedom of discussion, and more times of
speaking, than is generally allowed by the rules of the
house. It seems, too, that the yeas and nays are not
required to be taken upon votes in committee, as they
may be in votes in the house.
^ 894. On going into a committee of the whole house,
the speaker leaves the chair, and a chairman is ap-
pointed by the speaker to preside in committee. Amend-
ments and other proceedings are had in committee
much in the same way, as occur in the regular course
of the business of the house. Select and standing com-
mittees regulate their own times and modes of proceed-
ing according to their own discretion and pleasure,
unless otherwise ordered by the house. They make
their reports in the same way from time to time to the
house, and secure the directions of the latter. When
a bill is committed to a committee, it is read in sections ;
paragraph after {)aragraph is debated ; blanks are filled
up ; and alterations and amendments, both in form and
substance, are proposed, and often made.
^ 895. After the committee have gone through with
the whole bill, they report it, with all the alterations
and amendments made m it, to the house. It is then,
or at some suitable time afterwards, considered by the
latter, and the question separately put upon every alter-
ation, amendment, and clause. After commitment and
report to the house, and at any time before its passage,
any bill may be recommitted at the pleasure of the
house. When a bill, either upon a report of a commit-
tee, or after full discussion and amendment in the house.
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CH. XIII.] MODE OF PASSIITQ LAWS. 361
Stands for the next stage of its progress, the question
dien is, whether it shall be engrossed and read a third
time. And this is the proper time commonly chosen
by those, who are fundamentally opposed to it, to make
their attack upon it, it now being as perfect, as its friends
can shape it, and as little exceptionable, as its enemies
have « been able to make it Attempts are, indeed^
sometimes made at previous stages to defeat it, but
they are usually disjointed eflTorts ; because many per-
sons, who do not expect to be in favour of the bill ulti-
mately, are willing to let it go on to its most perfect
state, to take tune to examine it for themselves, and to
hear what can be said in its favour.
§ 896. The two last stages of the bill, viz. on the
questions, whether it shall have a third reading, and
whether it shall pass, are the strong pomts of resistance,
and defence. The first is usually the most interesting
contest, because the subject is more new and engaging,
and the trial of strength has not been made ; so that
the struggle for victory is yet wholly doubtful, and the
ardour of debate is proportionally warm and earnest
If the bill is ordered to be engrossed for a third readmg,
it is, when engrossed, put upon its final passage.
Amendments are sometimes made to it at this stage,
though reluctantly ; and any new clause, thus added, is
called a rider. If the vote is, that the bill shall pass,
the tide is then setded, though a tide is always reported
with the bill ; and that being agreed to, the day of its
passage is noted at the foot of it by the clerk. It is
then signed by the speaker, and transmitted to the
other house for concurrence therein.
§ 897. The bill, when thus transmitted to the other
house, goes through similar forms. It is either reject-
ed, committed, or concurred in, with, or without amend-
VOL. II. 46
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363 CONSTITUTION OF THIS U. STATES, [BOOK UU
ments. If a bill is amended by the house, to which it
it transmitted, it is then returned to the other house, in
which it originated, for their assent to the amendment
If the amendment is agreed to, the fact is made known
to the other house. If not agreed to, the disagreement
is in like manner notified. And the like course is
adc^ted, where the amendment is agreed to with an
amendment In either of, these cases, the house pro-
posing the amendment may recede from it ; or may
adc^t it with the amendment proposed by the other
house. If neither is done, the house then vote to in-
sist on the amendment, or to adhere to it. A vote to
insist keeps the question still open. But a vote to
adhere requires the other house either to insist^ or to
recede ; for if, on their part, there is a vote to adhere^
the bill usually falls without farther effort But, upon
a disagreement between the two houses, a conference
by a committee of each is usuaUy asked ; and in this
manner the matters in controversy are generally ad-
justed by adoptmg the course recommended by the
ccMnmittees, or one of them. When a bill has passed
both houses, the house last acting on it makes knovm
its passage to the other, and it is detivered to the joint
committee of enrolment, who see, that it is truly en-
rolled in parchment, and being signed by the speaks
of the house, and the president of the senate, it is then
senc to the president for his signature. If he approves
it, he signs it; and it is then deposited among the rolls in
the office of the department of state. If he disaf^roves
of it, he returns it to the house, in which it originated,
with his objections. Here they are entered at large on
the journal, and afterwards the house proceed to a con-
sideration of them.^
i ThisBiiiiniiary is abstracted from 1 niack.Coinm. ISl, 183 ; 1 Tucker's
Black. ComnL App.299,330, note ; 1 Kent Comm. Lect 11, p. 383, 834 ',
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CH. XIII.] MODE or PASSIJf O LAW9. S63
^ 898. This review of the forms and modes of pro-
ceeding in the passbg of laws cannot M to impress
upon every mind the cautious steps, by which legisla-
tion is guarded, and the solicitude to conduct busmess
without precipitancy, rashness, or irregularity. Fre-
quent opportunities are aflForded to each house to re-
view their own proceedings ; to amend their own errors ;
to correct their own inadvertencies ; to recover fix)m
the results of any passionate excitement ; and to re-
consider the votes, to which persuasive eloquence, or
party spirit has occasionally misled their judgments.
Under such circumstances, if legislation be unwise, or
loose, or inaccurate, it belongs to the infirmity of hu-
man nature in general, or to that personal carelessness
and indifference, which is sometimes the foible of
genius, as well as the accompaniment of ignorance and
prejudice.
^ 899. The structure and organization of the several
branches, composing the legislature, have also (unless
my judgment has misled me) been shown by the past
review to be admirably adapted to preserve a whole-
some and upright exercise of their powers. All the
checks, which human ingenuity has been able to devise,
(at least, all which, with reference to our habits, institu-
tions, and local interests, seemed practicable, or desh*a-
ble,) to give perfect operation to the Machinery of gov-
ernment ; to adjust all its movements ; to prevent its
eccentricities ; and to balance its forces ; — all these
have been introduced, with singular skill, ingenuity, and
wisdom, into the structure of the constitution.
^ 900. Yet, after all, the fabric may fall ; for the
dWilsoD'a Law Lect 171-, 17^, 173; Rawle on CoostitOtton, ch. 6;
p. 60, &c. ; and especially from the iltles of both booses, and Jefferson's
Manual, (editioii at Washington, 1828.)
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J64 coNSTiTUTioir or the u. states, [book lu.
work of man is perishable, and must for ever have in-
herent elements of decay. Nay, it must perish, if
there be not that vital spirit in the people, which alone
can nourish, sustain, and direct aU its movements. It
is in vain, that statesmen shall form plans of govern-
ment, in which the beauty and harmony of a republic
shall be embodied m visible order, shall be built up on
solid substructions, and adorned by every useful orna-
ment, if the inhabitants suffer the silent power of time
to dilapidate its walls, or crumble its massy supporters
into dust ; if the assaults from without are never resist-
ed, and the rottenness and mming from within are never
guarded against Who can preserve the rights and
liberties of the people, when they shall be abandoned
by themselves 1 Who shall keep watch in the temple,
when the watchmen sleep at their posts? Who shall
call upon the people to redeem their possessions, and
revive the republic, when their own hands have delibe-
rately and comiptiy surrendered them to the oppressor,
and have built the prisons, or dug the graves of their
own friends 1 Aristotle, in ancient times, upon a large
survey of the republics of former days, and of the facile
manner, in which they had been made the instruments
of their own destruction, felt' himself compelled to the
melancholy reflection, which has been painfully repeated
by one of the greatest statesmen of modem times, that
a democracy has many striking points of resemblance
with a tyranny. "The ethical character,** says he, "is
the same; both exercise despotism over the better
class of citizens ; and the decrees are in the one, what
ordinances and arrets are in the other. The dema-
goguCy too, and the court favourite are not unfreguenihf
the same identical men, and ahcays bear a close analogy.
And these have the principal power, each in tKeir re-
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OH. XIII.] MODS or PAS8IKO LAWS. 365
spective governments, favourites with the absolute mon-
arch, and demagogues with a people, such as I have
described.^ *
§ 901. This dark picture, it is to be hoped, will
never be applicable to the republic of America. And
yet it affords a warning, which, like all the lessons of
past experience, we are not permitted to disregard.
America, free, happy, and enlightened, as she is, must
rest the preservation of her rights and liberties upon
the virtue, independence, justice, and sagacity of the
people. If either fail, the republic is gone. Its shad-
ow may remam with all the pomp, and circumstance,
and trickery of government, but its vital power will
have departed. In America, the demagogue may arise,
as well as elsewhere. He is the natural, though spuri-
ous growth of republics ; and like the courtier he may,
by his blandishments, delude the ears, and blind Che
eyes of the people to their own destruction. If ever
the day shall arrive, in which the best talents and the
best virtues shall be driven from office by intrigue or
corruption, by the ostracism of the press, or the still
more unrelenting persecution of party, le^slation will
cease to be nationsJ. It will be wise by accident, and
bad by system.
1 Burke od the French Revolution, note ; Aristotle Polit. B. 4, ch. 4.
See Montesquieu^s Spirit of Laws, B. 8, jm«nm.
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"366 coir8TiTxrTK>ir or thb u. states, [book on
CHAPTER XIV.
POWERS OF COKORESS.
^ 902L We have now arrived, in the course of our
inquiries, at the eighth section of the first article of the
constitution, which contains an enumeration of the prin-
cipal powers of legislation confided to congress. A
consideration of this most important subject will detain
our attention for a considerable time ; as well, because
of the variety of topics, which it embraces, as (tf the
controversies, and discussions, to which it has given rise.
It has been, in the past time, it is in the present time,
and it will probably in all future^ time, continue to be
the debateable ground of the constitution, signalized, at
once, by the victories, and die defeats of the same par-
ties. Here, die advocates of state rights, and the
friends of the Union vrill meet in hostile array. And
here, those, who have lost power, will maintain long
and arduous struggles to regain the public confidence^
and those, who have secured power, will dispute every
position, which may be assumed £»* attack, either of
their policy, or their principles. Nor ought it at all
to surprise us, if that, which has been true in the political
history of other nations, shall be true in regard to our
own ; that the opposing parties shall occasionally be
found to mamtain the same system, when in power,
which they have obstinately resisted, when out of pow-
er. Without supposing any insincerity or departure
fit>m principle in such cases, it will be easily imagined,
that a very different course of reasoning will force itself
on the minds of those, who are responsible for the
measures of government, from that, which the ardour
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I
CH. XIV.] POWSES OF CONGRESS. Sd7
of opposition, and the jealousy of rivals, might well foster
in those, who may desire to defeat, what they have no
interest to approve.
^ 903. The first clause of the eighth section is in the
following words : *^ The congress shall have power to
^lay and collect taxes, duties, imposts, and excises, to
^pay the debts and provide for the common defence,
^ and general welfare of the United States ; but aH
^^ duties, imposts, and excises, shall be uniform through-
^ out the United States.'*
^ 904. Before proceeding to consider the nature and
extent of the power conferred by this clause, and the
reasons, on which it is founded, it seems necessary to
settle the grammatical construction of the clause, and to
ascertain its true reading. Do the words, ^to lay and
collect taxes, duties, imposts, and excises,'' constitute a
distinct, substantial power; and the words, "to pay debts
" and provide for the common defence, and general wel-
"f are of the United States," constitute another distinct
and substantial power 1 Or are the latter words connect
ed with the former, so as to constitute a quaUfication upon
them 1 This has been a topic of political controversy ;
and has furnished abundant materials for popular
declamation and alarm. If the former be the true in*-
terpretation, then it is obvious, that under colour of
the generality of the words to " provide for the com-
mon defence and general welfare," the government of
the United States is, in reality, a government of gener-
al and unlimited powers, notwithstanding the subse-
quent enumeradon of specific powers ; if the latter be
the true construction, then the power of taxation only
b given by the clause, and it is limited to' objects of a
national character, " for the common defence and the
" general welfare."
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368 COKSTITUTIOK OF THE U. STATES. [bOOK in.
§ 905. The former opinion has been maintained by
some minds of great ingenuity, and liberality of views.^
The latter has been the generally received sense of the
nation, and seems supported by reasoning at once solid
and impregnable. The reading, therefore, which will
be maintained in these commentaries, is that, which
makes the latter words a qualification of the former;
and this will be best illustrated by supplying the words,
which are necessarily to be understood in this inter-
pretation. They will then stand thus : " The congress
" shall have power to lay and collect taxes, duties, im-
^ posts, and excises, in order to pay the debts, and to
** provide for the common defence and general welfare
** of the United States ; " that is, for the purpose of pay-
ing the public debts, and providing for the common
defence and general welfare of the United States. In
- 1 See 2 Elliot's Debates, 927, 328. See Dane's App. § 41, p. 48 ; see
else 1 Elliot's Debates, 93 ; Id. 293 ; Id. 300 ; 2 Wilson's Uw Lect, 178,
180, 181 ; 4 Elliot's Debates, 224 ; 2 U. S. Law Journal, April, 1826,
p. 251, 264, 270 to 282. This last work contains, in p. 770 d seq. 9l
▼ery elaborate exposition of the doctrine. — Mr. Jefferson has, upon more
than one occasion, insisted, that this was the federal doctrine, that is, the
doctrine maintained by the federalists, as a party ; and that the other
doctrine was that of the republicans, as a party.* The assertion is incor-
rect ;for the latter opinion was constantly maintained by some of the most
ctrenuous federalists at the time of the adoption of tlie constitution, and
has since been maintained by many of them.f It is remarkable, that Mr.
George Mason, one of the most decided opponents of the constitution in
the Virginia convention, held the opinion, that the clause, to provide for
the common defence and general welfare, was a substantive power.
He added, ** That congress should have power to provide for the gener-
al welfare of the Union, I grant But I wish a clause in the constitu-
tion in respect to all powers, which are not granted, that they are retain-
ed by the states ; otherwise the power of providing for the general
welfare may be perverted to its destruction." t
• 4 ieffenon Corratp. 306.
t fiBUiot't Oebatei, 170, 183, 106; 9filliot*i DebatM, 908; 9 Amer. Musewn, 494 ; 9 Amer.
MuMum. 338.
t 9 ElUot'i Debates, 397, 398.
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CH. XIV.] POWERS or CONGRESS — TAXES. , S69
this sense, congress has not an unlhnited power of taxa-
tion ; but it is limited to specific objects, — the payment
of the public 4ebts, and providing for the common de-
fence and general welfare, A tax, therefore, laid by
congress for neither of these objects, would be uncon-
stitutional, as an excess of its legislative authority* In
what manner this is to be ascertained, or decided, will
be considered hereafter. At present, the interpretation
of the words only is before us ; and the reasoning, by
which that already suggested has been vindicated, will
now be reviewed.
§ 906. The constitution was, from its very origin, -
contemplated to be the frame of a national government,
of special and enumerated powers, and not of general
and unlimited powers. This is apparent, as will be
presently seen, from the history of the proceedings oi
the convention, which framed it ; and it has formed the
admitted basis of all legislative and judicial reasoning
upon it, ever since it was put into operation, by all, who
have been its open friends and advocates, as well as
by all, who have been its enemies and opponents. If
the clause, " to pay the debts and provide for the com-
^mon defence and general welfare of the United
" States,*' is construed to be an mdependent and. sub-
stantive grant of power, it not only renders wholly unim-
portant and unnecessary the subsequent enumeration
of specific powers ; but it plainly extends far beyond
them, and creates a general authority in congress to
pass all laws, which they may deem for the common
defence or general welfare.^ Under such circum-
stances, the constitution would practically create an
unlimited national government. The enumerated pow-
1 President Monroe's Message, 4th May, 1822, p. 33, Sa
vot.. II. 47
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370 COXSTITUTIOX OF THE U. STATES. [BOOK III.
ers would tend to embarrassment and confusion ; since
they would only give rise to doubts, as to the true ex-
tent of the general power, or of the enumerated pow-
ers.
§ 907. One of the most common maxims of interpre-
tation is, (as has been already stated,) that, as an
exception strengthens the force of a law in cases not
excepted, so enumeration weakens it in cases not enu-
merated. But, how could it be applied with success
to the interpretation of the constitution of the United
States, if the enumerated powers were neither excep-
tions from, n6r additions to, the geneial power to pro-
vide for the common defence and general welfare 1 To
give the enumeration of the specific powers any sensi-
ble place or operation in the constitution, it is indispen-
sable to construe them, as not wholly and necessarily
embraced in the general power. The common princi-
ples of interpretation would seem to instruct us, that
the different parts of the same instrument ought to be
so expounded, as to give meaning to every part, which
will bear it. Shall one part of the same sentence be
excluded altogether from a share in the meaning ; and
shall the more doubtful and indefinite terms be retained
m their full extent, and the clear and precise expres-
sions be denied any signification 1 For what purpose
could the enumeration of particular powers be inserted,
if these and all others were meant to be included in the
preceding general power ? Nothing is more natural or
common, than first to use a general phrase, and then
to qualify it by a recital of particulars. But the idea of
an enumeration of particulars, which neither explain, nor
qualify the general meaning, and can have no other
effect, than to confound and mislead, is an absurdity,
which no one ought to charge on the enlightened au-
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CH. XIV,] • POWERS OF CONGRESS TAXES. S71
thors of the constitution.* It would be to charge them
either with premeditated folly, or premeditated fraud.
§ 908, On the other hand, construing this clause in
connexion with, and as a part of the preceding clause,
giving the power to lay taxes, it becomes sensible and
operative. It becomes a qualification of that clause,
and limits the taxing power to objects for the conmion
defence or general welfare. It then contains no grant
of any power whatsoever ; but it is a mere expression
of the ends and purposes to be eflfected by the preced-
ing power of taxation.'
§ 909. An attempt has been sometimes made to
treat this clause, as distinct and independent, and yet
as having no real significancy per se, but (if it may be
so said) as a mere prelude to the succeeding enume-
rated powers. It is not improbable, that this mode of
explanation has been suggested by the fact, that in the
revised draft of the constitution in the convention the
clause was separated from the preceding exacdy in the
same manner, as every succeeding clause was, viz. by
a semicolon, and a break in the paragraph ; and that it
now stands, in some copies, and it is said, that it stands
in the official copy, with a semicolon interposed.' But
this circumstance will be found of very little weight,
when the origin of the clause, and its progress to its
1 The Federalist, No. 41.
3 See Debates on the Judiciary iu 1802, p. 332; Dane's App. $ 41 ;
President Monroe's Message on Internal Improvements, 4th May, 1822,
p. 32,33; 1 Tuck. Black. App. 231.
3 Journ. of Convention, p. 356 ; Id. 494 ; 2 United States Law Journal,
p. 264, April, 1826, New- York. — In the Federalist, No. 41, the circum-
stance, that it is separated from the' succeeding clauses by a semicolon is
noticed. The printed Journal of the Convention gives the revised draft
from Mr. Brearly's copy, as above stated. See Journal of Convention,
p. 351,356. See President Monroe's Message on Internal Improve-
menti, 4Ui May, 1822, p. 16, 32, &.c.
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372 C0K8TITUTI0N OF THE U. STATES. [bOOK III.
present state are traced in the proceedings of the con-
vention. It will then appear, that it was first intro-
duced as an appendage to the power to lay taxes.* But
there is a fundamental objection to the interpretation
thus attempted to be maintained, which is, that it robs
the clause of all efficacy and meaning. No person has
a right to assume, that any part of the constitution is
useless, or is without a meaning ; and o fortiori no per-
son h^ a right to rob any part of a meaning, natural
and appropriate to the language in the connexion, in
which it stands.* Now, the words have such a natural
and appropriate meaning, as a qualification of the pre-
ceding clause to lay taxes. Why, then, should such a
meaning be rejected?
^910. It is no sufficient answer to say, that the
clause ought to be regarded, merely as containing
•* general terms, explained and limited, by the subjoin-
ed specifications, and therefore requiring no critical at-
tention, or studied precaution ;"^ because it is assuming
the very point in controversy, to assert, that the clause
is connected with any subsequent specifications. It is
not said, to ** provide for the common defence, and ge-
neral welfare, in manner follomngj mz.^^ which would
be the natural expression, to indicate such an intention.
But it stands entirely disconnected fi'om every subse-
quent clause, both in sense and punctuation ; and is no
more a part of them, than they are of the power to
lay taxes. Besides; what suitable application, in
such a sense, would there be of the last clause in the
enimieration, viz., the clause " to make all laws, neces-
sary and proper for carrying into execution the fore-
1 Journ. of Convention, p. 323, 324,326.
8 President Monroe's Message, 4 May, ISS'J, p. 32, 33.
3 Pretident Madison's Letter to Mr. Stevenson, 27 Nov. 1830.
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CH. XIV.] POWERS OF CONGRESS — TAXES. 373
going powers, &c. ? " Surely, this clause is as applica-
ble to the power to lay taxes, as to any other ; and no
one would dream of its being a mere specification, un-
der the power to provide for the common defence, and
general welfare.
^911. It h^ been said in support of this construction,
that in the articles of confederation (art 8) it is provided,
that " all charges of war, and all other expenses, that
" shall be incurred for the common defence, or general
" welfare, and allowed by the United States in con-
egress assembled, shall be defrayed out of a commqu
" treasury, &c ;" and that " the similarity in the use of
** these same phrases in these two great federal char-
" ters may well be considered, as rendering their mean-
"ing less liable to misconstruction; because it will
" scarcely be said, that in the former they were ever
" understood to be either a general grant or power, or
" to authorize the requisition or application of money
"by the old congress to the common defence and [or]*
"general welfare, except in the cases afterwards enu-
" merated, which explained and limited their meaning ;
" and if such was the limited meaning attached to these
"phrases in the very instrument revised and remodelled
" by the present constitution, it can never be supposed,
" that when copied into this constitution, a different
"meaning ought to be attached to them."* Without
stopping to consider, whether the constitution can
in any just and critical sense be deemed a revision
and remodelling of the confederation,* if the argu-
ment here stated be of any value, it plainly estab-
1 «« Or" is the word in the article.
3 Virginia Report and Resolutions of 7 January, 1800. See also the
Federalist, No. 41.
3 See the Federalist. No. 40.
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374 COlfSTITUTION OF THE U. STATES. [BOOK III.
lishes, that the words ought to be construed, as a
qualification or limitation of the power to lay taxes.
By the confederation, all expenses incurred for the
common defence, or general welfare, are to be defrayed
out of a common treasury, to be supplied by requisi-
tions upon the states. Instead of requisitions, the con-
stitution gives the right to the national government
directly to lay taxes. So, that the only difference in
this view between the two clauses is, as to the
mode of obtaining the money, not as to the objects or
purposes, to which it is to be applied. If then the
constitution were to be construed according to the true
bearing of this argument, it would read thus : con-
gress shall have power to lay taxes for " all charges of
" war, and all other expenses, that shall be incurred for
** the common defence or general welfare.'* This plain-
ly makes it a qualification of the taxing power ; and
not an independent provision, or a general index to the
succeeding specifications of power. There is not, how-
ever, any solid ground, upon which it can be for a mo-
ment maintained, that the language of the constitution is
to be enlarged, or restricted by the language of the con-
federation. That would be to make it speak, what its
words do not import, and its objects do not justify. It
would be to append it, as a codicil, to an instrument,
which it was designed wholly to supercede and va-
cate.
^912. But the argument in its other branch rests
on an assumed basis, which is not admitted. It sup-
poses, that in the confederation no expenses, not strictly
incurred under some of the subsequent specified pow-
ers given to the continental congress, could be properly
payable out of the common treasury. Now, that is a
proposition to be proved ; and is not to be taken for
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CH. XIV.] POWERS OF COlfokESS — TAXES. 376
granted. The confederation was not finally ratified, so
as to become a bindmg instrument on any of the states,
until IfTarch, 1781. Until that period there could be
no practice or construction under it; and it is not
shown, that subsequently there was* any exposition to
the effect now insisted on. Indeed, after the peace of
1783, if there had been any such exposition, and it had.
been unfavourable to the broad exercise of the power,
it would have been entided to less weight, than usually
belongs to the proceedings of public bodies in the ad-
minis traiion of their powers ; since the decline and fall
of the confederation was so obvious, that it was of little
use to exert them. The states notoriously disregarded
the rights and prerogatives admitted to belong to the
confederacy ; and even the requisitions of congress, for
objects most unquestionably within their constitutional
authority, were openly denied, or silently evaded.
Under such circumstances, congress would have little
inclination to look closely to their powers ; since, wheth-
er great or small, large or narrow, they were of litUe
practical value, and of no practical cogency.
^913. But it does so happen, that in point of fact, no
such unfavourable or restrictive interpretation or prac-
tice was ever adopted by the continental congress. On
the contrary, they construed their power on the subject
of requisitions and taxation, exactly asit is now contend- -
ed for, as a power to make requisitions on the states for
all expenses, which they might deem proper to incur for
the common defence and general welfare ; and to ap-
propriate all monies in the treasury to the like purposes.
This is admitted to be of such notoriety, as to require
no proof.^ Surely, the practice of that body in ques-
1 Mr. Madison himself, in his Letter to Mr. Stevenson, Nov. 27, 1830,
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876 CONSTITUTION or the U. states, [book III.
tions of this nature must be of far higher value, than
the mere private interpretation of any persons in the
present times, however respectable. But the practice
was conformable to the constitutional authority of con-
gress under the confederation. The ninth article ex-
pressly delegates to congress the power " to ascertain
" the necessary sums to, be raised for the service of
"the United States, and to appropriate and apply
" the same for defraying the public expenses ; '' and
then provides, that congress shall not " ascertain the
admits the force of these remarks in their full extent His lan-
guage is, " If the practice of the revolutionary congress he pleaded
in opposition to this view of the case " (i. e. his view, that the words have
no distinct meaning?,) " the plea i's met by the notoriety, that, on several
accounts, the practice of that body is not the expositor of the articles of
the confederation. These articles were not in force, until they were
finally ratified by Maryland, in 1781. Prior to that event, the power of
congress was measured by the exigencies of the war ; and derived its
sanction from the acquiescence of the states. Afler that event, habit,
and a continued expediency, amounting often to a real, or an apparent ne-
cessity, prolonged the exercise of an undefined authority, which was
the more readily overlooked, as the members of that body held their
seats during pleasure ; as its acts, particularly after the failure of the
bills of credit, depended for their efficacy on the will of the states, and
as its general impotency became manifest Examples of dtparlwrt
from the prescribed nUe are too well knoum to require proof J" So that
it is admitted, that the practice, under the confederation, was notoriously
such, as allowed appropriations by congress for any objects, which they
deemed for the common defence and general welfare. And yet we
are now called upon to take a new and modern gloss of that instrument,
directly at variance with that practice. See also Mr. Wilson's pamphlet,
on the constitutionality of the bank of North America, in 1785. The
reason, why he does not allude to the terms " common defence and gen-
eral welfare," in that ar^ment, probably was, that there was no ques-
tion respecting appropriations of money involved in that discussion.
He strenuously contends, that congress bad a eight to charter the bank ;
and he alludes to the fifth article, which, for the convenient manage-
ment of the general inttresls of the United States, provides for the ap-
pointment of delegates from the states. He deduces the power, from
its being essentially nationaly and vitally important to the government.
3 Wilson's l4iw Lect 387.
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CH. XIV,] POWERS or CONGRESS TAXES. 377
"sums and expenses necessary for the defence and
" welfare of the United States, or any of them, &c.
" unless nine states assent to the same/' So that here
we have, in the eighth article, a declaration, that " all
" charges of war and all other expenses, that shall be
" incurred for the common defence or general welfare,
" &c. shall be defrayed out of a common treasury ; '*
and in the ninth article, an express power to ascertain
the necessary sums of money to be raised for the pub-
lic semce ; and then, that the necessary sums for the
defence and welfare of the United States, (and not of
the United States alone, for the words are added,) or
of any of themy shall be ascertained by the assent of
nine states. Clearly therefore, upon the plain language
of the articles, the words "common defence and
general welfare,'' in one, and " defence and welfare," in
another, and " public service," in another, were not idle
words, but were descriptive of the very intent and ob-
jects of the power ; and not confined even to the defence
and welfare of all the states, but extending to the wel-
fare and defence of any of them} The power then is,
in this view, even larger, than that conferred by the con-
stitution.
^914. But there is no ground whatsoever, which
authorizes any resort to the confederation, to interpret
the power of taxation, which is conferred on congress
by the constitution. The clause has no reference
whatsoever to the confederation; nor indeed to any
other clause of the constitution. It is, on its face, a
distinct, substantive, and independent power. Who,
then, is at liberty to say, that it is to be limited by other
clauses, rather than they to be enlarged by it ; smce
1 2 Elliot's Deb. 195.
VOL. II. 48
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378 CONSTITUTION OF THE U. STATES. [bOOK III.
there is no avowed connexion, or reference from the
one to the others'? Interpretation would here desert
its proper oflSce, that, which requires, that " every part
^ of the expression ought, if possible, to be allowed
^some meanmg, and be made to conspire to some
"common end." *
§ 915. It has been farther said, in support of the
construction now under consideration, that " whether
the phrases in question are construed to authorize
every measure relating to the common defence and
general welfare, as contended by some ; or every mea-
sure only, in which there might be an application of
money, as suggested by the caution of others ; the
efifect must substantially be the. same, in destroying the
import and force of the particular enumeration of pow-
ers, which follow these general phrases in the consti-
tution. For it is evident, that theie is not a smgle pow-
er whatsoever, which may not have some reference to
the common defence, or the general welfare ; nor a pow-
er of any magnitude, which, in its exercise, does not in-
volve, or admit an application of money. The govern-
ment, therefore, which possesses power m either one,
or the other of these extents, is a government without
Umitations, formed by a particular enumeration of pow-
ers ; and consequendy the meaning and effect of this
particular enumeration is destroyed by the exposition
given to these general phrases." The conclusion de-
I The Federalist, No. 40. — In the first draft, of Dr. Franklin, in
1775, the claase was as follows : '* All charges of wars, and all other
general expenses, to be incurred for the common welfare, shall be de-
^yed,'' &c.— In Mr. Dickinson's drafl, in July, 1776, the words were,
** All charges of wars, and all other expenses, that shall be incurred for
the common defence, or general welfare," &c ; and these words were
subsequently retained. 1 Secret Jour, of Congress, (printed in 1821,)
p. 285, 294, 307, 323 to 325, 354.
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OH. XIV.] POWERS OF COKGRSSS — TAXES. 379
duced from these premises is, that under the confedera-
tion, and the constitution, "congress is authorized to
provide money for the common defence and general
welfare. In both is subjomed to this authority an enu-
meration of the cases, to which their powers shall ex-
tend. Money cannot be applied to the general welfare
otherwise, than by an application of it to some particu-
lar measiu*e, conducive to the general welfare. When-
ever, therefore, money has been raised by the general
authority, and is to be applied to a particular measure,
a question arises, whether the particular measure be
within the enumerated authorities vested in the con-
gress. If it be, the money requisite for it may be ap-
plied to it ; if it be not, no such application can be
made. This fair and obvious interpretation coin-
cides with, and is enforced by the clause in the consd-
tudon, which declares, that no money shall be drawn
from the treasury but in consequence of appropriations
by law. An appropriation of money to the general
welfare would be deemed rather a mockery, than an
observance of this constitutional injunction." *
^916. Stripped of the ingenious texture, by which
this argument is disguised, it is neither more nor less,
than an attempt to obliterate from the constitution the
whole clause, " to pay the debts, and provide for the
" common defence and general welfare of the United
" States," as entirely senseless, or inexpressive^ of any
intention whatsoever.* Strike them out, and the con-
stitution is exactly what the argument contends for. It
is, therefore, an argument, that the words ought not to
1 Virginia Resolutions, of 8th January, 1800. The same reasoning^
is in President Madison's Veto message, of 3d of March, 1817. 4 El-
Uot's Deh. 280, 281.
«4 EUiot'sDeb.236.
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380 CONSTITUTION OF THE U. STATES. [BOOK III.
be in the constitution ; because if they are, and have
any meaning, they enlarge it beyond the scope of cer-
tain other enumerated powers, and this is both mis-
chievous and dangerous. Being in the constitution, they
are to be deemed, vox et preterea nihilj an empty
sound and vain phraseology, a finger-board pointing to
other powers, but having no use whatsoever, since these
powers are sufficiently apparent without. * Now, it is
not too much to say, that in a constitution of govern-
ment, fi^amed and adopted by the people, it is a most
unjustifiable latitude of interpretation to deny effect to
any clause, if it is sensible in the language, in which
it is expressed, and in the place, in which it stands. If
words are inserted, we are bound to presume, that they
have some definite object, and intent ; and to reason
them out of the constitution upon arguments ah inconve^
nientij (which to one mind may appear wholly unfound-
ed, and to another wholly satisfactory,) is to make a
new constitution, not to construe the old one. It is to
do the very thing, which is so often complained of, to
make a constitution to suit our oWn notions and wishes,
and not to administer, or construe that, which the people
have given to the country.
^917. But what is the argument, when it is thor-
oughly sifted ? It reasons upon a supposed dilemma,
upon which it suspends the advocates of the two con-
trasted opinions. If the power to provide for the com-
mon defence and general welfare is an independent
^ In a Debate of 7Ui of Febnaiy, 1792. (4 Elliot's Deb. 236.) Mr.
Madison puts them, (manifestly as his own construction,) " as a sort of
caption, or general description of the specified powers, and as having no
further moaning, and giving no further powers, than what is found in
that specification." See also, Mr. Madison's Veto message, on the
Bank Bonus Bill, 3d March, 1817. 4 Elliot's Deb. 280, 281.
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CH. XIV,] POWERS OF CONGRESS — TAXES. 381
power, then it is said, that the government is unlimited,
and the subsequent enumeration of powers is unnecessa-
ry and useless. If it is a mere appendage or qualifica-
tion of the power to lay taxes, still it involves a power
of general appropriation of the monies so raised, which
indirectly produces the same result.* Now, the former
position may be safely admitted to be true by those,
who do not deem it an independent power ; but the
latter position is not a just conclusion from the premises,
which it states, that it is a qualified power. It is not a
logical, or a practical sequence from the premises ; it is
a non sequitur.
^918. A dilemma, of a very difierent sort, might be
fairly put to those, who contend for the doctrine, that
the words are not a qualification of the power to lay
taxes, and, indeed, have no meaning, or use per se. The
words are found in the clause respecting taxation, and
as a part of that clause. If the power to tax extends
shnply to the payment of the debts of the United
States, then congress has no power to lay any taxes
for any other purpose. K so, then congress could not
appropriate the money raised to any other purposes ;
since the restriction is to taxes for payment of thie debts
of the United States, that is, of the debts then existing.
This would be almost absurd. If, on the other hand,
congress have a right to lay taxes, and appropriate the
money to any other objects, it must be, because the
words, " to provide for the common defence and gene-
" ral welfare,*' authorize it, by enlarging the power to
those objects ; for there are no other words, which be-
long to the clause. All the other powers are in distinct
clauses, and do noi touch taxation. No advocate for
1 4 EUiot's Deb. 280, 281.
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882 CONSTITUTION OF THE U. STATES. [bOOK III.
the doctrine of a restrictive power will contend, that
the power to lay taxes to pay debts, authorizes the
payment of all debts, which the United States may
choose to incur, whether for national or constitutional
objects, or not. The words, " to pay debts, ^ are there-
fore, either antecedent debts, or debts to be incurred
" for the common defence and general welfare,'* which
will justify congress in mcurring any debts for such
purposes. But the language is not confined to the
payment of debts for the common defence and general
welfare. It is not ** to pay the debts ^ merely ; but
** to provide far the common defence and general wel-
fere.** That is, congress may lay taxes to provide
means for the common defence and general welfare.
So that there is a difficulty in rejecting one part of the
qualifymg dause, without rejecting the whole, or en-
lai^ng the words for some purposes, and restricting
them for others.
^919. A power to lay taxes for any purposes what-
soever is a general power ; a power to lay taxes for
certain specified purposes is a limited power. A power
to lay taxes for the common defence and general welfare
of the United States is not in common sense a general
power. It is limited to those objects. It cannot
constitutionally transcend them. If the defence pro-
posed by a tax be not the common defence of the
United States, if the welfare be not general, but spe-
cial, or local, as contradistmguished fi-om national, it is
not within the scope of the constitution. If the tax be
not proposed for the common defence, or general wel-
fare, but for other objects, wholly extraneous, (as for
instance, for propagating Mahometanism among the
Turks, pr givmg aids and subsidies to a foreign nation,
to build palaces for its kings, or erect monuments to its
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OH. XIV.] POWERS OF CONGRESS — TAXES. 383
heroes,) it would be wholly mdefi?nsible upon consti-
tutional principles. The power, then, is, under such cir-
cumstances, necessarily a qualified power. If it is so,
how then does it aflfect, or in the slightest degree trench
upon the other enumerated powers? No one will pre-
tend, that the power to lay taxes would, in general, have
superseded, or rendered unnecessary all the other
enumerated powers. It would neither enlarge, nor
qualify them. A power to tax does not include them.
Nor would they, (as unhappily the confederation too
clearly demonstrated,)^ necessarily include a power to
tax. Each has its appropriate office and objects ; each
may exist without necessarily interfering with, or anni-
hilating the other. No one will pretend, that the power
to lay a tax necessarily includes the power to declare
war, to pass naturalization and bankrupt laws, to coin
money, to establish post-offices, or to define piracies
and felonies on the high seas. Nor would either of
these be deemed necessarily to include the power to
tax. It might be' convenient; but it would not be
absolutely indispensable.
^ 920. The whole of the elaborate reasoning upon
the propriety of granting the power of taxation, pressed
with so much ability and earnestness, both in and out
of the convention,' as vital to the operations of the na-
tional government, wouId>have been useless, and almost
absurd, if the power was included in the subsequentiy
enumerated powers. If the power of taxing was to be
granted, why should it not be qualified according to the
intention of the framers of the constitution ? But then,
it is said, if congress may lay taxes for the common
defence and general welfare, the money may be appro-
1 See the Federalist, No. 21, 22, 30 ; 1 ElUot's Deb. 318.
s See the FederaHst, No. 30 to 37.
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384 CONSTITUTION OF THfi U. STATES. [BOOK III.
priated for those purposes, although not within the scope
of the other enumerated powers. Certainly it may be
so appropriated ; for if congress is authorized to lay
taxes for such purposes, it would be strange, if, when
raised, the money could not be applied to them. That
would be to give a power for a certain end, and then
deny the end intended by the power. It is added,
" that there is not a single power whatsoever, which
may not have some reference to the common defence
or general welfare ; nor a power of any magnitude,
which, in its exercise, does not involve, or admit an ap-
plication of money." If by the former language is
meant, that there is not any power belonging, or inci-
dent to any government, which has not some reference
to the common defence or general welfare, the proposi-
tion may be peremptorily denied. Many governments
possess powers, which have no application to either of
these objects in a just sense ; and some possess pow-
ers repugnant to both. If it is meant, that there is no
power belonging, or incident to a good government, and
especially to a republican government, which may not
have some reference to those objects, that proposition
may, or may not be true ; but it has nothing to do with
the present inquiry. The only question is, whether af
mere power to lay taxes, and appropriate money for the
common defence and general welfare, does include all
the other powers of government ; or even does include
the other enumerated powers (limited as they are) of
the national government. No person can answer in
the affirmative to either part of the inquiry, who has
fully considered the subject. The power of taxation is
but one of a multitude of powers belonging to govern-
ments ; to the state governments, as well as the nation-
al government. Would a power to tax authorize a
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CH.XiyJ POWERS OF CONGRESS — TAXES. 385
state government to regulate the descent and distribu-
tion of estates ; to prescribe the form of conveyances ;
to establish courts of justice for general purposes ; to
legislate respecting personal rights, or the general
dominbn of property ; or to punish all offences against
society ? Would it confide to congress the power to
grant patent rights for invention ; to provide for coun-
terfeiting the public securities and coin ; to constitute
judicial tribunals with the powers confided by the third
article of the constitution ; to declare war, and raise
armies and navies, and make regulations for their gov-
ernment ; to exercise exclusive legislation in the terri-
tories of the United States, or in other ceded places ;
or to make all laws necessary and proper to carry into
effect all the powers given by the constitution? The
constitution itself upon its face refutes any such notion.
It gives the power to tax, as a substantive power ; and
gives others, as equally substantive and independent
§ 921. That the same means may sometimes, or
pfjten, he resorted to, to carry into effect the different
powers, furnishes no objection ; for that is common to
aU governments. That an appropriation of money toay
be the usual, or best mode of carrying into effect some
of these powers, furnishes no objection ; for it b one of
the purposes, for which, the argument itself admits, that
the power of taxation is given. That it is indispensable
fcM* the due exercise of all the powers, may admit of
sooQie doubt The only real question is, whether even
admittmg the power to lay taxes is appropriate for
some of the purposes of other enumerated powers, (for
no one will contend, that it will, of itself, reacl^ or pro-
vide for them all,) it is limited to such appropriations, as
grow out of the exercise of those powers. In other
wordfi^ whether it is an mcident to those powers, or a
VOL. II. 49
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886 OONSTITUTION OF THE U. 8TATB8. [bOOK m*
substantiye power in other cases, which may concern
the comqaon defence and the general welfare. If there
are no other cases, which concern the common defence
and general welfare, except those within the scope of
the other enumerated powers, the discussion is merely
nominal and frivolous. If there are such cases, who is
at liberty to say, that, bemg for the common defence
and general welfare, the constitution did not intend to
embrace themi The preamble of the constitution de-
clares one of the objects to be, to provide for the com-
mon defence, and to promote the general welfare ; and
if the power to lay taxes is in express terms given to
provide for the common defence and general welfare,
what ground can there be to construe the power, short
of the object 1 To say, that it shall be merely auxiliary
to other enumerated powers, and not co-extensive with
its own terms, and its avowed objects? One of the
best established rules of interpretation, one, which com-
mon sense and reason forbid us to overlook, is, that
when the object of a power is clearly defined by its
terms, or avowed m the context, it ought to be con-
strued, so as to obtain the object, and not to defeat it
The circumstance, that so construed the power may
be abused, is no answer. All powers may be abused ;
but are they then to be abridged by those, who are to
administer them, or denied to have any operation ? If
the people frame a constitution, the rulers are to obey
it Neither rulers, nor any other functionaries, much
less any private persons, have a right to cripple it, be-
cause it is according to their own views inconvenient,
or dangerous, unwise or impolitic, of narrow limits, or
of wide influence.
§ 922. Besides ; the argument itself admits, that
^congress is authorized to provide money for the
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en. xin.] powsRS of congress — taxes* 887
" commoD defence and general welfare.** It is not pre-
tended, that, when the tax is laid, the specific objects^
for which it is laid, are to be specified, or that it is to
be solely applied to those objects. That would be to
insert a limitation, no where stated in the text But it
is said, that it must be applied to the general welfare ;
and that can only be by an application of it to some
particular measure, conducive to the general welfare.
This is admitted. But then, it is added, that this par-
ticular measure must be within the enumerated author-
ities Tested in congress, (that is, within some of the
powers not embraced in the first clause,) otherwise the
application is not authorized.^ Why not, since it is for
the general welfare? No reason is assigned, except, that
not being withm the scope of those enumerated pow-
ers, it is not given by the constitution. Now, the pre-
mises may be true ; but the conclusion does not Mow,
unless the words common defence and general voelfare
are limited to the specifications included in those pow-
ers. So, that after all, we are led back to the same
reasoning, which construes the words, as having no mean-
ing per sCf but as dependent upon, and an exponent
ol^ the enumerated powers. Now, this conclusion
is not justified by the natural connexion or collocation
of the words ; and it strips them of all reasonable force
and efficacy. And yet we are told, that " this fisdr and
obvious interpretation coincides with, and is enforced
by, the clause of i]^e constitution, which provides, that
no money shall be drawn fix)m the treasury, but in
consequence of appropriations by law ; " as if the clause
did not equally apply, as a restraint upon drawing
money, whichever construction is adopted. Suppose
1 See also 4 Elliot's Debates, 280, 281.
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988 CONSTITUTION OF THE U. STATES. [bOOK HI*
congress to possess the most unlimited power to ap-
propriate money for the general welfare ; would it not
be still true, that it could not be drawn from the tr^-
sury, until an appropriation was made by some law
passed by congress 1 This last clause is a limitation^
tiot upon the powers of congress, but upon the acts of
the executiye, and other public officers, in regard to
the public monies in the treasury. .
^ 923. The argument in favour of the construction,
which treats the clause, as a qualification of the power
to lay taxes, has, perhaps, never been presented in a
more concise or forcible shape, than in an official opin-
ion, deliberately given by one of our most distinguished
statesmen.^ " To lav taxes to provide for the general
welfare of the United States, is,^ says he, " to lay taxes
for the purpose^ of providing for the general welfiare.
For the laying of taxes is the power^ and the general
welfare the purpose^ for which the power is to be ex-
ercised. Congress are not to lay taxes ad libitum^ for
any purpose they please ; but only to pay the debts,
or provide for the welfare of the Union. In like man-
ner they are not to do any thing they please, to pro-
vide for the general welfare ; but only to lay taxes for
that purpose. To consider the latter phrase, not as
describing the pxupose of the first, but as giving a dis-
tinct and independent power to do any act they please,
which might be for the good of the Union, would ren-
der all the preceding and subsequent enumerations of
power completely useless. It would reduce the whole
instrument to a single phrase, that of instituting a con-
gress with power to do whatever would be for the
good of the United States ; and, as they would be the
sole judges of the good or evil, it would also be a pow-
1 Mr. Jefferson.
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OH. xin.] powxms of ooiroREfS'-^ taxes. S8d
er to do whatever eril they pleased. It is an estab-
lished rule of GODstniction^ where a phrase wiU bear
either of two meanings, to give that, which will allow
some meaning to the oiher parts of the instrument, and
not that, which will render all the others useless.
Certainly, no such universal power was meant to be
^ven them. It was intended to lace them up strictly
within the enumerated powers, and those, without
whkh, as means, those powers could not be carried
into effect.^ *
^ 924. The same opmion has been maintained at
different and distant times by many eminent states-
men.* It was avowed, and apparently acquiesed in,
in the state conventions^ called to ratify the constitu-
tion ;' and it has been, on various occasions, adopted
1 Jefferson's Opinion on the Bank of the United States, 15th Febru-
ary, 1791 ; 4 Jefferson's Correspondence, 524, 525. — This opinion was
deliberately reasserted by Mr. Jefferson on other occasions. There
may, perhaps, also be found traces of an opinion still more restrictive in
his later writings ; but they are very obscore and unsatisfactory. Bee 4
Jefferson's Correspondence, 306, 416, 457 ; Message of President Jef-
ferson, 2d December, 1806 ; 5 Wait's State Papers, 453, 458, 459.
8 It was maintained by Mr. Hamilton, in his Treasury Report on Man*
ufactures, (5th Dec. 1791,) and in his argument on the constitutionality
of a National Bank, 23d Feb. 1791, p. 147, 148 ; by Mr. Gerry in tbe de-
bate on the National Bank in Feb. 1791,(4 Elliot's Debates, 226;) by
Mr. Ellswortli in a speech in 1788,(3 American Museum, 338?) and by
President Monroe, in his Message of the 4th of May, J822, (p. 33 to 38,)
in an elaborate argument, which well deserves to be studied. He con-
tends, that the power to lay taxes is confined to purposes for the com-
mon defence and general welfare. And that the power of appropriation
of the monies is co-extensive, that is, that it may be applied to any pur-
poses of the common defence or general welfare. Mr. Adams, in his
iiCtter to Mr. Speaker Stevenson, 1 1th of July, 1832, published since the
preparation of these Commentaries, has given a masterly exposition of
the clause, to which it may be important hereafter again to recur.
3 2 Elliot's Debates, 170, 183, 195, 328, 344 ; 3 EUiot's Debates, 262 ;
2 American Museum, 434; 1 Elliot's Debates, 311 5 Id. 81, 82; 3 Elliot's
Debates, 263, 290 ; 2 American Museum, 644.
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390 ooirsnTUTioN of thx u. states, [book ni.
•
by congress,^ and may fairly be deemed, that which the
deliberate sense of a majority of the nation has at all
times supported. This, too, seems to be the construc-
tion maintained by the Supreme Court of the United
States. In the case of CHbbons r. OgdeUj* Mr. Chief
Justice Marshall, in delivering the opinion of the court,
said, ^ Congress is authorized to lay and collect taxes,
&c to pay the debts, and provide for the common
defence and general welfare of the United States^
This does not interfere with the power of the states to
tax for the support of their own governments ; nor is the
exercise of that power by the states an exercise of
any portion of the power, that b granted to the United
States. In imposing taxes for state purposes, they are
not doing, what congress is empowered to do. Con-
gress is not empowered to tax for those purposes,
which are within the exclusive province of the states.
When, then, each government is exercising the power
of taxation, neither b exercbing the power of the
other." Under such circumstances, it b not, peiiiaps,
too much to contend, that it b the truest, the safest,
and the most authoritative construction of the consti-
tution.'
§ 925. The view thus taken of this clause of the
constitution will receive some confirmation, (if it should
be thought by any person necessary,) by an histori-
cal examination of the proceedings of the convention.
I See cases referred to in President Monroe's Message, 4th of May,
1822 ; 1 Kent's Comm. Lect p. 250, 251 ; 4 Elliot's Deb. 226, 24:3, 244, 279
to 282 ; Id. 29], 292 ; 2 United States Law Journal, April, 182G, p. 263
to 280; Webster's Speeches, 389 to 401, 411, 412, 426.
s 9 Wheat R. 1, 199.
3 1 Kent's Comm. Lect p. 251 ; Sergeant on Const Law, ch. 28, p.
311 tp 315 ; Rawle on the Constitution, ch. 9, p. 104 } 2 United States
Law Journal, April, 1826, p. 351 to 282.
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OH. UII.] POWERS OF OOirORESS — TAXES. 391
The first resolution adopted by the convention on this
subject of the powers of the general government, was
^ that the national legislature ought to be empowered to
enjoy the legislative rights vested in congress by the
confederation, and moreover to legislate in all cases, to
which the separate states are mcompetent, or in which
the harmony of the United States may be interrupted
by the exercbe of individual legislation." ^ At a subse-
quent period, the latter clause was altered, so as to
read thus: ''And, moreover, to legislate in all cases
/en* the general interests of the Union, and also in those,
to which the states are separately incompetent, or in
which the harmony of the United States may be inter-
rupted by the exercise of individual legislation.'^ '
Wlien the first draft of the constitution was prepared, in
pursuance of the resolutions of the convention, the
clause respecting taxation (bemg the first section of
the seventh article) stood thus : " The legislature of
the United States shall have the power to lay and col-
lect taxes, duties, imposts, and excises," without any
qualification or limitation whatsoever.
^ 926. Afterwards a motion was made to refer cer-
tain propositions, and among others a proposition to
secure the payment of the public debt, and to appro-
priate funds exclusively for that purpose, and to secure
the public creditors fi^om a violation of the public faith,
when pledged by the authority of the legislature, to a
select committee, (of five,) which was accordingly
done.' Another committee (of eleven) was appointed
at the same time, to consider the necessity and expe-
diency of the debts of the several states being assumed
1 Jourii. of CoiiTention,68, 86, 87, 135, 136.
s Journ. of CoDventioD, 181, 182, 208.
' Joanu of Convention, 261.
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902 CONSTITUTION OF THE U. STATES. [bOOK III.
by the Uidted States.^ The lattek* committee reported,
that ^ the legislature of the United States shall have
power to fulfil the engagements, which have been en-
tered into by congress, and to discharge, as well the
debts of the United States, as the debts incurred by
the several states during the late war, kr the common
defence and general welfare.^ This propositlcm (it
may be presumed) has no reference whatsoever to die
clause in the draft of the constitution to lay taxes.
The former committee (of five) at a later day reported,
that there 'should be added to the first section of the
seventh article (the clause to lay taxes) the following
words, ^ for payment of the debts and the necessary
expenses of the United States, provided, that no law
for raisiag any branch of revenue, except what may
be specially appropriated for the payment of interest
on debts or loans, shall continue in force for more than
•^ years.^ * It was then moved to amend the first
clause of die report of the other committee, (on state
debts,) so as to read as follows : ^The legislature sbsiBi
fulfil the engagements and discharge the debts of tlie
United States,** which (after an ineffectual attempt to
amend by bilking out the words, ^^ discharge the debts,^
and inserting the words, ^ liquidate the claims,") pass-
ed unanimously in the affirmative.' So, that the pro-
vision in the report, to assume the state dd>ts, was
struck out On a subsequent day, it was moved to
amend the first section of the seventh article, so as to
read : ^ The legislature shaU fiilfil the engagements,
and discharge the dd^ts of the United States, and shall
have power to lay and collect taxes, duties, imposts,
1 Joam. of Convention, 261. 9 Id. 377.
' Journ. of Convention, 379, 380.
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CH. XIII.] POWERS OF CONGRESS — TAXES. 393
BXid excises," which passed in the aflSrmative ; * thus
incorporating the amendment already stated with the
clause respecting taxes in the draft of the constitution.
On a subsequent day the following clause was propos-
ed and agreed to: "All debts contracted, and engage-
" ments entered into by or under the authority of con-
"gress, shall be as valid against the United States,
** under this constitution, as imder the confederation.'*
On the same day, and after the adoption of this amend-
ment, it was proposed to add to the first clause of the
first section of the seventh article, (to lay taxes, &c.,)
the following words : " for the payment of said debts,
'^and for the defi^ying the expenses, that shall be in-
**curred for the common defence, and general welfare,*'
which passed in the negative by the vote of ten states
against one.* So, that the whole clause stood without
any fiirther amendment, giving the power of taxation in
the same unlimited terms, as it was reported in the
original draft of the constitution. This unlimited extent
of the power of taxation seems to have been unsatisfac-
tory; and at a later day another committee reported, that
the clause respecting taxation should read as follows :
" The legislature shall have power to lay and collect
^ taxes, duties, hnposts, and excises, to pay the debts,
"and provide for the common defence, and general
" welfare of the United States ; '' and this passed in*
the aflirmative without any division.' And in the final
draft the whole clause now stands thus : " The con-
" gress, &c. shall have power to lay and collect taxes,
" duties, imposts, and excises ; to pay the debts and
" provide for the common defence and general welfare
" of the United States.'' ^ From this historical survey,
1 Journ. of Convention, 284. 3 id. 291.
3 Journ. of Convention, 323, 324, 326. ^ Id. 351, 35a
VOL. II. 50
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394 CONSTITUTION OF THE U- STATES. [bOOK UK
it is apparent, that it was first brought forward in con-
nexion with the power to lay taxes ; that it was orig-
inally adopted, as a qualification or limitation of the ob-
jects of that power ; and that it ^as not discussed, as
an independent power, or as a general phrase point-
ing to, or connected. with, the subsequent enumerated
powers. There was another amendment proposed,
which would have created a general power to this
effect ; but it was never adopted, and seems silently to
have been abandoned.^
§ 927. Besides ; it is impracticable in grammatical
propriety to separate the different parts of the latter
clause. The words are, " to pay the debts, and pro-
" vide for the common defence,'' &c. " To pay the
" debt§" cannot be construed, as an independent power;
for it is connected with the other by the copulative
" and.'* The payment of the antecedent debts of the
United States was already provided for by a distinct
article ; * and the power to pay future debts must ne-
cessarily be implied to the extent, to which they could
constitutionally be contracted ; and would fall within
the purview of the enumerated power to pass all laws
necessary and proper to carry the powers given by the
constitution into effect If, then, these words were and
ought to be read, as a part of the preceding power to lay
taxes, and in connexion with it, (as this historical review
establishes beyond any reasonable controversy,) they
draw the other words, " and provide for the common
" defence," &c. with them into the same connexion.
On the other hand, if this connexion be once admitted,
it wotild be almost absurd to contend, that " to pay
** the debts " of the United States was a general phrase,
1 Journ. of Convention, 277,
9 Journ. of Convention, 291. See also the Constitution, art 6.
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CH. XIII.] POWERS OP CONGRESS TAXES. 396
which pointed to the subsequent enumerated powers,
and was qualified by them ; and yet, as a part of the
very clause, we are not at liberty to disregard it The
truth is, (as the historical review also proves,) that after
it had been decided, that a positive power to pay the
public debts should be inserted in the constitution, and
a desire had been evinced to introduce some restric-
tion upon the power to lay taxes, in order to allay
jealousies and suppress alarms, it was (keeping both
objects in view) deemed best to append the power to
pay the public debts to the power to lay taxes ; and
then to add other terms, broad enough to embrace all
the other purposes contemplated by the constitution.
Among these none were more appropriate, than the
words, " common defence and general welfare,'* found in
the articles of confederation, and subsequently with
marked emphasis introduced into the preamble of the
constitution. To this course no opposition was made, be-
cause it satisfied those, who wished to provide positively
for the public debts, and those, who wished to have the
power of taxation co-extensive with all constitutional
objects and powers- In other words, it conformed to
the spirit of that resolution of the convention, which
authorized congress " to legislate, in all cases, for the
" general interests of the Union." ^
1 Journal of Convention, 181, 182, 208. — The letter of Mr. Madison
to Mr. Stevenson of 27th November, 1880, contains an historical ex-
amination of the origin and progress of this clause substantially the
same, as that given above. AHer perusing it, I perceive no reason to
change the foregoing reasoning. In one respect, Mr. Madison seems
to labour under a mistake, viz. in supposing, that the proposition of the
25th of August, to add to the power to lay taxes, as previously amended
on the 23d of August, the words, *' for the payment of the debts and for
defraying the expenses, thtft shall be incurred for the common defence
and general welfare," was rejected on account of the generality of the
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396 CONSTITUTION OF THE U. STATES. [bOOK IIU
^ 928. Having thus disposed of the question, what is
the true interpretation of the clause, as it stands in the
text of the constitution, and ascertained, that the power
phraseology. The known opinions of some of the states, which voted
in the negative (Connecticut alone voted in the afiEirmative) shows, that
it could not have heon rejected on this account It is most probable,
that it was rejected, because it contained a restriction upon the power
to tax ; for this power appears at first to have passed without opposition
in its general form.* It may be acceptable to the general reader to
have the remarks of this venerable statesman in his own words, and
therefore they are here inserted. After giving an historical review of
the origin and progress of the whole clause, he says,
** A special provision in this mode could not have been necessary for the
debts of the new congress ; for a power to provide money, and a power
to perform certain acts, of which money is the ordinary and appropriate
means, must, of course, carry with them, a power to pay the expense of
performing the acts. Nor was any special provision for debts j^oposed,
till the case of the revolutionary debts was brought into view ; and it ia
a fair presumption, from the course of the varied propositions, which
have been noticed, that but for the old debts, and their association with
the terms, ' common defence and general wel&re,' the clause would
have remained, as reported in the first draft of a constitution, expressing
generally ' a power in congress to lay and collect taxes, duties, imposts,
and excises ; ' without any addition of the phrase ' to provide for the
common defence and general welfare.' With this addition, indeed, the
language of the clause being in conformity with that of the clause in the
articles of confederation, it would be qualified, as in those articles, by
the specification of powers subjoined to it But there is sufficient rea-
son to suppose, that the terms in question would not have been intro*
duced, but for the introduction of the old debts, with which they happened
to stand in a familiar, though inoperative, relation. Thus introduced, how-
ever, they pass undisturbed through the subsequent stages of the consti-
tution.
'*If it be asked, why the terms ^common defence and general wel-
fare,' if not meant to convey the comprehensive power, which, taken
literally, they express, were not qualified and explained by some refer-
ence to the particular power subjoined, the answer is at hand, that
although it might easily have been done, and experience shows it might
be well, if it bad been done, yet the omission is accounted for by an in-
attention to the phraseology, occasioned, doubUess, by identity with the
harmless character attached to it in the instrument, from which it was
borrowed.
" But may it not be asked with infinitely more propriety, and without
the possibility of a satisfactory answer, why, if the terms were meant to
* Jourcal ofConTention, p. 920, 357, 384, 391.
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OH. XIII.] POWERS OF CONGRESS TAXES. 397
of taxation, though general, as to the subjects, to which
it may be applied, is yet restrictive, as to the purposes,
for which it may be exercised ; it next becomes matter
embrace, not only all the powers particularly expressed, but the indefi-
nite power, which has been claimed under them, the intention was not
so declared ; why, on that supposition, so much critical labour was em-
ployed in enumerating the particular powers, and in defining and limit-
ing their extent ?
^ The variations and vicissitudes in the modification of -the clause, in
which the terms * common defence and general welfare ' appear, are
remarkable ; and to be no otherwise explained, than by differences of
opinion, concerning the necessity or the form of a constitutional provis-
ion for the debts of the revolution ; some of the members, apprehend-
ing improper claims for losses by depreciated bills of credit; others, an
evasion of proper claims, if not positively brought within the authorized
functions of the new government; and others again, considering the
past debts of the United States, as sufficiently secured by the principle,
that no change in the government could change the obligations of the
nation. Besides the indications in the Journal, the history of the period
sanctions this explanation.
^ But, it is to be emphatically remarked, that in the multitude of mo-
tions, propositions, and amendments, there is not a single one having
reference to the terms ' common defence and general welfare,' unless
we were so to understand the proposition containing them, made on
August 25th, which was disagreed to by all the states, except one.
^ The obvious conclusion, to which we are brought, is, that these
terms, copied from the articles of confederation, were regarded in the
new, as in the old instrument, merely as general terms, explained and
limited by the subjoined specifications, and therefore requiring no criti-
cal attention or studied precaution.
" If the practice of the revolutionary congress be pleaded in opposi-
tion to this view of the case, the plea is met by the notoriety, that on
several accounts, the practice of that body is not the expositor of the
' articles of confederation.' These articles were not in force, tUI they
were finally ratified by Maryland in 1781. Prior to that event, the pow-
er of congress was measured by the exigencies of the war, and derived
its sanction from the acquiescence of the states. Afler that event, hab-
it, and a continued expediency, amounting often to a real or apparent
necessity, prolonged the exercise of an undefined authority, which was
the more readily overlooked, as the members of the body held their
seats during pleasure, as its acts, particularly afler the failure of the
bills of credit, depended for their efficacy on the will of the states ; and
as its general impotency became manifest Examples of departure
from the prescribed rule are too well known to require proof. The
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398 CONSTITUTION OF THE U/ STATES. [bOOK HI.
of inquiry, what were the reasons, for which this power
was given, and what were the objections, to which it
was deemed liable.
case of the old bank of North America might be cited, as a memorable
one. The incorporating ordinance grew out of the inferred necessity
of such an institution to carry on the war, by aiding the finances, which
were starving under the neglect or inability of the states to furnish their
assessed quotas. Congress was at the time so much aware of the defi-
cient authority, that they recommended it to the state legislatures to
pass laws giving due effect to the ordinance, which was donQ by Peno-
sylvania and several other states.
" Mr. Wilson, justly distinguished for his intellectual powers, being
deeply impressed with the importance of a bank at such a crisis, pub-
lished a small pamphlet, entitled * Considerations on the Bank of North
America,^ in which he endeavoured to derive the power from the nature
of the Union, in which the colonies were declared and became indepen-
dent states; and also from the tenour of the ♦articles of confederation '
themselves. But what is particularly worthy of notice is, that with all
his anxious search in those articles for such a power, he never glanced
at the terms, ' common defence and general welfare,' as a source of it
He rather chose to rest the claim on a recital in the text, ♦ that for the
more convenient management of the general interests of the United
States, delegates shall be annually appointed to meet in congress,' which
he said implied, that the United States had general rights, general pow-
ers, and general obligations, not derived from any particular state, nor
from all the particular states, taken separately, but ♦ resulting from the
union of the whole ;' these general powers, not being controlled by the
article declaring, that each state retained all powers not granted by the
articles, because ♦ the individual states never possessed, and could not
retain, a general power over the others.'
"^ The authority and argument here resorted to, if proving the ingenu-
ity and patriotic anxiety of the author, on one band, show suficiently on
the other, that the terms, ♦ common defence and general welfare,' could
not, according to the known acceptation of them, avail his object
^ That the terms in question were not suspected in the convention,
which formed the constitution, of any such meaning, as hos been con-
structively applied to them, may be pronounced with entire confidence.
For it exceeds the possibility of belief, that the known advocates in the
convention for a jealous grant, and cautious definition of federal powers,
should have silently permitted the introduction of words or phrases, in a
sense rendering fruitless the restrictions and definitions elaborated by
them.
" Consider, for a moment, the immeasurable difference between the
constitution, limited in its powers to the enumerated objects ; and ex-
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CH. XIII.] POWERS OP CONGRESS TAXES. 399
§ 929. That the power of taxation should be, to
some extent, vested in the national government, was
admitted by all persons, who sincerely desired to escape
panded, as it would be by the import claimed for tbe phraseology in
questfoD. The difference is equivalent to two constitutions, of charac-
ters essentially contrasted with each other ; the one possessing powers
•confined to certain specified cases ; the other extended to all ^casos
whatsoever. For what is the case, that would not be embraced by a
general power to raise money ; a power to provide for the general wel-
fare ; and a power to pass all laws necessary and proper to carry these
powers into execution ; all such provisions and laws superseding at the
same time, all local laws and constitutions at variance with them ? Can
less be said, with the evidence before us, furnished by the Journal of
the Convention itself, than that it is impossible, that such a constitution,
as the latter, would have been recommended to tbe states by all the
members of that body, whose names were subscribed to the instrument?
^ Passing from this view of the sense, iu which the terms, ' common
defence and general welfare,' were used by the framers of the constitu-
tion, let us look for that, in which they roust have been understood by
the conventions, or rather by the people, who, through their conventions,
accepted and ratified it And here the evidence is, if possible, stiD
more irresistible, that the terms could have been regarded, as giving a
scope to federal legislation, infinitely more objectionable, than any of
the specified powers, which produced such strenuous opposition, and
calls for amendments, which might be safeguards against the dangers
apprehended from them.
" Without recurring to the published debates of those conventions,
which, as far as they can be relied on for accuracy, would, it is believed,
not impair the evidence furnished by their recorded proceedings, it wiU
suffice to consult the lists of amendments proposed by such of the con-
ventions, as considered the powers granted to the government, too ex-
tensive, or not safely defined.
^ Besides the restrictive and explanatory amendments to the text of
the constitution, it may be observed, that a long list was premised under
the name, and in the nature of 'Declaration of Rights ;' all of them in-
dicating a jealousy of tbe federal powers, and an anxiety to multiply
securities against a constructive enlargement of them. But ths appeal
is more panicularly made to the number and nature of the amendments,
proposed to be made specific and integral parts of the constitutional
text
" No less than seven states, it appears, concurred in adding to their
ratifications a series of amendments, which they deemed requisite. Of
these amendments, nine were proposed by the convention of Massachu-
setts ; five by that of South-Carolina ; twelve by that of New-Hamp-
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400 CONSTITUTlOir OP THE U, STATES. [bOOK III.
from the imbecilities, as well as the inequalities of the
confederation.^ Without such a power, it would not
be possible to provide for the support of the national
shire ; twenty by that of Virginia ; thirty-three by that of New^ork ;
twenty-six by that of North-Carolina ; and twenty-one by that of Rhode-
Island.
'* Here are a majority of the states, proposing amendments, in one in-
stance diirty-three by a single state ; all of them intended to circum-
scribe the power grante<l to the general government, by explanations,
restrictions, or prohibitions, without including a single proposition from
a single state referring to the terms, 'common defence and general wel-
fare;' which, if understood to convey the asserted power, could not
have failed to be the power most strenuously aimed at, because evi-
dently more alarming in its range, than all the powers objected to, put
together. And that the terms should have passed altogether unnoticed
by the many eyes, which saw danger in terms and phrases employed in
some of the most minute and limited of the enumerated powers, must be
regarded as a demonstration, that it was taken for granted, that the
terms were harmless, because explained and limited, as in the * articles
of confederation,' by the enumerated powers, which followed them.
^ A like demonstration, that these terms were not understood in any
sense, that could invest congress with powers not otherwise bestowed
by the constitutional charter, may be found in what passed in the first
session of congress, when the subject of amendments was taken up, with
the conciliatory view of freeing the constitution from objections, which
had been made to the extent of its powers, or to the unguarded terms
employed in describing them. Not only were the terms, ' common de-
fence and general welfare,' unnoticed in the long list of amendments
bfought forward in the outset ; but the Journals of Congress show, that
in the progress of the discussions, not a single proposition was made in
either branch of the legislature, which referred to the phrase, as admits
ting a constructive enlargement of the granted powers, and requiring an
amendment guarding against it. Such a forbearance and silence on
such an occasion, and among so many members, who belonged to the
part of the nation, which called for explanatory and restrictive amend-
ments, and who had been elected, as known advocates for them, cannot
be ac( ounted for, without supposing, th&t the terms, ' common defence
and general welfare,' were not, at that time, deemed susceptible of any
such construction, as has since been applied to them.
** It may be thought, perhaps, due to the subject, to advert to a letter
of October 5th, 1787, to Samuel Adams, and another of October Kith, of
i See The Federalist, No. 21, 90.
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CH. XIII.] POWERS OF CONGRESS — TAXES. 401
forces by land or sea, or the national civil list, or the
ordinary charges and expenses of government For
these purposes at least, there must J)e a constant and
regular supply of revenue.^ If there should be a defi-
ciency, one of two evils must inevitably ensue ; either
the people must be subjected to continual arbitrary
plunder; or the government must sink into a fatal atro-
phy,* The former is the fate of Turkey under its
sovereigns : the latter was the fate of America under
the confederation.'
^ 930. If, . then, there is to be a real, effective na-
tional government, there must be a power of taxation
co-extensive with its powers, wants, and duties. The
only inquiry properly remaining is, whether the resour-
ces of taxation should be specified and limited ; or,
whether the power in this respect should be general,
leaving a full choice to the national legislature. The op-
ponents of the constitution strenuously contended, that
the same year, to the governor of Virginia, from R. H. Lee, in both of
which it is seen, that the t^rms had attracted his notice, and were ap-
prehended by him ' to submit to congress every object of human legisla-
tion.' But it is particularly worthy of remark, that although a member
of the senate of the United States, when amendments to the constitution
were before that house, and sundry additions and alterations were there
made to the list sent from the other, no notice was taken of those terms,
as pregnant with danger. It must be inferred, that the opinion formed
by the distinguished member, at the first view of the constitution, and
before it had been fully discussed and elucidated, had been changed
into a conviction, that the terms did not fairly admit the construction he
had originally put on them ; and therefore needed no explanatory pre-
caution against it"
Against the opinion of Mr. Madison, there are the opinions of men of
great eminence, and well entitled to the confidence of their country ;
and among these may be enumerated Presidents Washington, Jefferson,
and Monroe, and Mr. Hamilton. The opinion of the latter upon this
very point wlU be given hereafter in his own words.
1 1 Tucker's Bkck. Comm, App. 235 etseq, ; Id. 244, 245.
a The Federalist, No. 30. 3 Id.
VOL. II. 51
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402 CONSTITUTION OF THS V. 8TAT£$. [bOOK III.
the power should be restricted ; its friends, as strenu-
ously contended, that it was indispensable for the pub-
lic safety, that it sl|ould be general
§ 93L The general reasonmg, by which an unlimited
power was sustamed, was to the following effects
Every government ought to contain within itself every
power requisite to the full accomplishment of the objects
committed to its care, and the complete execution of
the trusts, for which it is responsible, free from every
other control, but a regard to the public good, and to the
secusrity of the people. In other words, every power
ought to be proportionate to its object The duties oi
superintending the national defence, and of securing the
public peace against foreign or domestic violence, in-
volve a provision for casualties and dangers, to which
no possible limits can be assigned ; and therefore the
power of making that provision ought to know no othef
bounds, than the exigencies of the nation, and the re-
sources of the community. Revenue is the essential
engine, by which the means of answering the national
exigencies must be procured; and therefore the power
of procuring it must necessarily be comprehended in
that of providing for those exigencies. Theory, as
well as practice, the past experience of other nations,
as well as our own sad experience under the confede-
ration, conspire to prove, that the power of procuring
revenue is unavailing, and a mere mockery, when ex-
ercised over states in their collective capacities. If,
therefore, the federal government was to be of any
efficiency, and a bond of union, it ought to be invested
with an unqualified power of taxation for all national
purposes.^ In the history of mankind it has ordinarily
1 The Federalist, No. 31 ; Id. No. 30 ; Id. No. 21.
*
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CH. XIII.] POWERS OF COlfORESS — TAXES. 403
been found, that in the usual progress of thmgs the
necessities of a nation in every stage of its existence
are at least equal to its resources.* But, if a more fa-
vourable state of things should exist in our own gov-
ernment, still we must expect reverses, and ought to
provide against them. It is impossible to foresee all
the various changes in the posture, relations, and power
of different nations, which might affect the prosperity
and safety of our own. We may have formidable for-
eign enemies. We may have internal commotions.
We may suffer from physical, as well as moral calami-
ties; from plagues, famine, and earthquakes; from
political convulsions, and rivalries; from the gradual
decline of particular sources of industry; and from
the necessity of changing our own habits and pur-
suits, in consequence of foreign improvements and com-
petitions, and the variable nature of human wants and
desires. A source of revenue adequate in one age,
may wholly or partially fail in another. Commerce, or
manufactures, or agricuhure may thrive under a tax in
one age, which would destroy them in another. The
power of taxation, therefore, to be useful, must not
only be adequate to all the exigencies of the nation, but
it must be capable of reaching from time to time all the
most productive sources. It has been observed with
no less truth, than point, that ^^ in political arithmetic
two and two do not always make four.'* * Constitutions*
of government are not to be framed upon a calculation
of existing exigencies ; but upon a combination of these
with the probable exigencies of ages, according to the
natural and tried course of human affairs. There ought
to be a capacity to provide for future contingencies, as
they may happen ; . and as these are (as has been
1 The Federalist, No. 30. < The Federalist, No. 31.
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404 coirsTiTUTioir of the v. states, [book in.
already suggested) illimitable in their nature, so it is
impossible safely to limit that capacity.*
§ 932. In answer to this reasomng it was objected,
that •^it is not true, because the exigencies of the
Union may not be susceptible of Umitation, that its
power of taxation ought to be unconfined. Revenue
b as requisite to the purposes of the local administra-
tions, as to those of the Union ; and the former are at
least of equal importance with the latter to the happi-
ness of the people. It is, therefore, as necessary, that
the state governments should be able to command the
means of supplying their wants, as that the national
government should possess the like faculty in respect
to the wants of the Union. But an indefinite power in
the latter might, and probably would in time, deprive
the former of the means of providing for their own
necessities ; and would subject them entirely to the
mercy of the national legislature. As the laws of the
Union are to become the supreme law of the land ; and
as it is to have power to pass all laws, that may be
necessary, for carrying into execution the authorities,
with which it is proposed to vest the national govern-
ment, it might at any time abolish the taxes imposed for
state objects upon the pretence of an mterference with
its own. It might allege a necessity of domg this in
order to give efficacy to the national revenue ; and thus
'all the resources of taxation might by degrees become
the subjects of federal monopoly, to the entire exclu-
sion and destruction of the state governments." * The
1 The Federalist, No. 34 ; 1 Elliot's Debates, 77 to 89; Id. 303 to
308 ; Id, 309, 31 1 to 316, 321 to 329 ; Id. 337 ; 2 Elliot's Debates, 95, 96,
118 ; Id. 198 to 204 ; 3 ElUot's Debates, 261, 262, 290 ; 3 Amer. Museom,
334, 338 ; 1 Tucker's Black. Comm. 234, 235, 236.
, a The Federalist, No. 31 ; 1 Elliot's Debates, 77, 78 to 89 ; Id. 91,
105, 112 ; Id. 293, 294 to 296 ; Id. 301, 309, 303 ; R 329 to 333 ; 2 EUi-
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CH. Xni.] POWERS OF CONGRESS — TAXES. 405
difficulties arising from this collision between the state
and national governments might be easily avoided by a
separation an*d distinction, as to the subjects of taxation,
or by other methods, which might be easily devised.
Thus, for instance, the general government might be en-
trusted with the power of external taxation, such as lay-
ing duties and imposts on goods imported ; and the states
remam exclusively in pibssession of the power of inter-
nal taxation. Or power might be given to the general
government to lay taxes exclusively upon certain spe-
cified subjects ; or to lay taxes, if requisitions on the
states were not complied with ; * or, if the specified
subjects failed to proditce an adequate revenue, resort
might be had to requisitions, or even to direct taxes, to
supply the deficiency.*
§ 933. In regard to these objections it was urged,
that it was impossible to rely (as the history of the
government under the confederation abundantly proved)
upon requisitions upon the states.' Direct taxes were
exceedingly unequal, and difficult to adjust ; ^ and could
ot's Debates, 52, Si, 208 ; 3 Elliot's Debates, 77 to 91 ; 1 Tuck. Black.
Comm. App. 240 ; 2 Amer. Museum, 543, 544.
1 3 Amer. Museum, 423 ; 2 Elliot's Debates, 52, 53, 200, 206.
s See The Federalist, No. 30; 1 Elliot's Debates, 294; 1 Tucker's
Black. Comm. App. 234, 235 ; 1 Elliot's Debates, 294, 295 ; 2 Elliot's
Debates, 52, 53, 111, 112 ; Id. 200, 206, 208. — It was moved in the con-
vention, that whenever revenue was required to be raised by direct tax-
ation, it should be apportioned among Uie states, and then requisitions
made upon the states to pay the amount ; and in default only of their
' compliance, congress should be authorized to pass acts directing the
mode of collectiug it. But this proposition was rejected by a vote of
seven states against one, one state being divided.*
3 The Federalist, No. 30 ; 1 Elliot's Debates, 303, 304 ; Id. 325^
326, 327; 2 Elliot's Debates, 198, 199, 204.
4 The Federalist, No. 21 ; 1 Elliot's Debates, 81, 82 ; 2 Elliot's De-
bates, 105 ; Id. 199, 204, 236 ; 1 Tucker's Black. Comm. App. 234, 235^
236; 3DaU.ii.l71,178. >
* Journal of the Convmtioo, p. 974.
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406 coNSTiTtmoir of the u. states, [book hi.
not safely be relied on, as an adequate or satisfactory
source of revenue, except as a final resort, when others
more eligible failed. The distinction between external
and internal taxation was indeed capable of being re-
duced to practice. But in many emergencies it might
leave the national government without any adequate
resources, and compel it to a course of taxation ruinous
to our trade and industry, and the solid interests of the
^ country. No one of due reflection can contend, that
commercial imports are, or could be, equal to all future
exigencies of the Union ; and indeed ordinarily they
may not be found equal to them.^ Suppose they are
equal to the ordinary expenses of the Union ; yet, if
war should come, the civil list must be entirely over-
looked, or the military left without any adequate supply.*
ttow is it possible, that a government half supplied and
half necessitous can fulfil the purposes of its institution,
or can provide for the security, advance the prosperity,
or support the reputation of the commonwealth 1 How
can it ever possess either energy or stability, dignity or
credit, confidence at home, or respectability abroad ?
How can its admmistration be any thing else, than a
succession of expedients, temporary, impotent, and
disgraceful? How will it be able to avoid a frequent
sacrifice of its engagements to immediate necessity ?
How can it undertake, or execute any liberal or en-
larged plans of public good ? • Who would lend to a
1 The Federalist, No. 41. See 1 Elliot's Debates, 303 to 306.
• The Federalist, No. 30, 34.— " A government," (said one of our
most distinguished statesmen, Mr. Ellsworth, of Connecticut, speaking
on this very subject,) ^ which can command but half its resources, is
like a man wilh but one arm to defend himself." Speech in Connecti-
cut Convention, 7th January, 1788 ; 3 Amer. Museum, 338.
> The Federalist, No. 30.
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CH. XIII.] POWERS OP CONGRESS TAXES. 407
government, incapable of pledging any permanent re-
sources to redeem its debts 1 It would be the com-
mon case of needy individuals, who must borrow upon
onerous conditions and usury, because they cannot
promise a punctilious discharge of their engagements,*
It ^ ould, therefore, not only not be wise, but be the
extreme of folly to stop short of adequate resources for
all emergencies, and to leave the government entrusted
with the care of the national defence in a state of total,
or partial incapacity to provide for the protection of the
community against future invasions of the public peace
by foreign war, or domestic convulsions. Jf, indeed,
we are to try the novel, not to say absurd experiment
in politics, of tying up the hands of government from
protective and offensive war, founded upon reasons of
state, we ought certainly to be able to compel foreign .
nations to abstain from all measures, which shall in-
jure, or cripple us.* We must be able to repress their
ambition, and disarm their enmity ; to conquer their
prejudices, and destroy their rivalries and jealousies.
Who is so visionary, as to dream of such a moral influ-
ence in a republic over the whole world? It should
never be forgotten, that the chief sources of expense in
every government have ever arisen from wars and re-
bellions, from foreign ambition and enmity, or from do-
mestic insurrections and factions. And it may well be
presumed, that what has been m the past, will continue
to be in the future.
^ 934. Besides ; it is manifest, that however ade-
quate commercial imposts might be for the ordinary
expenditures of peace, the operations of war might,
and indeed ordinarily would, if our adversary possess-
* The PcderaliBt, No. 30. ^ The Federalist, Na 34.
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408 CONSTITUTION OF THE U. STATES. [bOOK III.
ed a large naval force, greatly endanger, if it did not
wholly cut off our supplies from this source. * And if
this were the sole reliance of the national government,
a naval warfare upon our commerce would, on this very
account, be at once the most successful, and the most
irresistible means of subduing us, or compelling us to
sue for peace. What could Great Britain, or France
do m a naval war, if they were compelled to rely on
commerce alone, as a resource for taxation to raise
armies, or maintain navies 1 What could America do,
in a contest with a rival power, whose navy possessed
a superiority, sufficient to blockade all her principal
ports?* And, independent of any such exigencies,
the history of the world shows, that nothing is more
fluctuating and capricious than trade. The proudest
commercial nations in one age have sunk down to com-
parative insignificance m another. Look at Venice,
and Genoa, and the Hanse Towns, and Holland, and
Portugal, and Spain ! What is their present, commer-
cial importance ; compared with its glory, and success,
m past times? Could either of them now safely rely
on imposts, as an exclusive source of revenue 1
§ 935. There is another, very important view of this
1 3 Elliot's Debates, 290.
9 In the recent war, of 1812-1813, between Great Britain, and the
United States, we had abundant proofs of the correctness, of this rea-
soning. Notwithstanding the duties upon importations were doMed;
from the naval superiority of our enemy, our government, were com-
pelled to resort to direct, and internal taxes, to land taxes and excises ;
and even with all these advantages, it is notorious, that the credit of the
government sunk exceedingly low, during the contest; and the public
securities were bought and sold, under the very eyes of the administra-
tion, at a discount of nearly fifty per cent, from their nominal amount
Nay, at one time, it was impracticable to borrow any money upon the
government credit This event (let it be remembered,) took place, af-
ter twenty years, of unexampled prosperity of the country. It is a sad,
but solemn admonition.
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on. xiv.] POWERS or coiraRssfl — taxes. 409
subject. If the power of taxation of the general govem-
ment were confined to duties on imports, it is evident,
that it might be compelled, for want of other adequate
resources, to extend these duties to an injurious excess.
Trade might become* embarrassed, and perhaps oppress-
ed, so as to dimmish the receipts, while the duty was
increased; smuggling, always facile, and always de-
moralizing in a republic of a widely extended sea-
coast, would be most mischievously encouraged.^ The
first effect would be, that commerce would thus gradu-
ally change its channels ; and if other interests should
be (as, indeed, they might be to some extent) aided
by such exorbitant duties ; the ultimate result would
be a great diminution of the revenue, and the ruin of
a great branch of industry. It never can be either
politic or just, wise or patriotic, to found a government
upon principles, which in its ordinary, or even extraor-
dinary operations, must naturally, if not necessarily,
lead to such a result. This would be, to create a gov-
ernment, not for the happiness, or prosperity of the
whole people; but for oppressions, and mequalities,
arising from scanty means, and inadequate powers.
§ 936. In regard to the other part of the objection,*
founded on the dangers to the state governments fit)m
this general power of taxation, it is wholly vrithout
any solid foundation. It assumes, that the national
government will have an interest to oppress or des-
tiroy the state governments ; a supposition, wholly in-
admissible in principle, and unsupported by ; fact
There is quitp as much reason to presume, that there
will be a disposition m the state governments to en-
croach on that of the union.* In truth, no reasoning,
1 The Federalist, No. 35. > The Federalist, No. dL
VOL. II. 52
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410 COKSTITUTIOir OF THE V. STATS8. [bOOK IU.
founded exclusively on either ground, is safe, or satis-
factory. There ought to be power in each govern-
ment to maintain itself, and execute its own powers ;
but it does not necessarily follow, that either would
become dangerous to the other. The objection, in-
deed, is rather aimed at the structure, and organiza-
tion of the government, than at its powers ; since it is
impossible, if the structure and organization be rea-
sonably skilful, that any usurpation or oppression can
take place.^
^ 937. But waiving this consideration, it will at once
be seen, that the state governments have complete
means of self-protection, as with the sole exception of
duties on imports and exports, (which the constitution
has taken from the states, unless it is exercised by the
consent of congress,) the power of taxation remains
iix the states concurrent and co-e;ctensive with that
of congress. The slightest attention to the subject
will demonstrate this beyond all controversy. The
language of the constitution does not, in terms, make
it an exclusive power in congress ; the existence of a
concurrent power is not incompatible with the exercise
of it by congress ; and the states are not expressly
prohibited from us'mg it by the constitution. Under
such circumstances, the argument is irresistible, that a
concurrent power remains in the states, as a part of
their originsd and unsurrendered sovereignty.*
1 The Pedewliet, No. 31, 32.
9 The FeOeralist, No. 3*2. See Gihb<ms v. C^den, 9 Wheat R. 1,
199 to 202. 1 Kent»8 Coram. Lect 18, p. 3t)3, 367, 368, 369. —This sub-
ject has been already considered in these Commentaries, in the rules of
interpretation of the constitution ; and a very important illustratim, in
tfie Federalist, No. 32, on this very point of Uzation, was cited there. It
seems, therefore, wholly unnecessary to repeat the reasoning. See also
4 Wheaton's ,R. 193, 316 ; 5 Wheaton's R. 22, 24, 28, 45, 49 ; 9 Whea-
ton's R. 199, 210, 238 ,- 12 Whemton's R. 448.
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CH« XIT.] POWERS OF COKGRESS — TAXES. 411
§ 938. The remarks of the Federalist, on this point,
are very full and cogent. "There is, plainly,^ says
that work, "no expression, in the granting clause,
which makes that power exclusive m the Union.
There is no independent clause, or sentencfe, which
prohibits the states from exercising it. So far is this
from being the case, that a plain and conclusive argu-
ment to the contrary is deducible from the restraint
laid upon the states, in relation to duties on imports
and exports. This restriction implies an admission,
that, if it were not inserted, the states would possess
the power it excludes ; and it implies a further admis*
sion, that as to all other taxes the authority of the
states remains undiminished. In any other view, it
would be both unnecessary and dangerous. It would
be unnecessary, because, if the grant to the Union rf
the power of laying such duties implied the exclusion
of the states, or even their subordination in this par-
ticular, there would be no need of such a restriction.
It would be dangerous, because the introduction of it
leads directly to the conclusion, which has been men-
tioned, and which, if the reasoning of the objectors be
just, could not have been intended ; I mean, that the
states in all cases, to which the restriction did not ap-
ply, would have a concurrent power of taxation with
the Union. The restriction in question amounts to
what lawyers call a negative pregnant ; that is, a ne-
gation of one thing, and an affirmance of another; a
negation of the authority of the states to impose taxes
on imports and exports ; and an affirmance of their au-
thority to impose them on other articles.*' — " As to a
supposition of repugnancy between the power of taxa-
tion in the states, and in the Union ; it cannot be sup-
ported in that sense, which would be requisite to wcx^
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412 CONSTITUTIOir OF THE U. STATES. [BOOK III.
an exclusion of the states. It is indeed possible, Aat
a tax might be laid on a particular article by a state,
which might render it inexpedient, that a fiirther tax
should be laid on the same article by the Union. But
it would not imply a constitutional inability to impose a
further tax. The quantity of the imposition, the ex-
pediency of an increase, on either side, would be mu-
tually questions of prudence ; but there would be in-
volved no direct contradiction of power. The particu-
lar policy of the national and state system of finance
mi^t, now and then, not exactly coincide, and might
require reciprocal forbearance. It is not, however, a
mere possibility of inconvenience, in the exercise oS
powers ; but an immediate constitutional repugnancy,
that can, by implication, alienate and extinguish a pre-
existing right of sovereignty.'**
§ 939. It is true, that the laws of the Union are to
be supreme.' But, without this, they would amount to
nothing. It may be admitted, that a law, laying a tax
for the use of the United States, would be supreme in
its nature, and legally uncontrollable. Tet a law, ab-
rogating a state tax, or preventing its collection, would
be as clearly unconstitutional ; and, therefore, not the
supreme law. As far as an improper accumulation of
taxes on the same thing might tend to render the col-
lection difficult, or precarious, it would be a mutual in-
convenience, not arising from superiority, or defect of
power on either side, but from an injudicious exercise
of it«
1 The Federalist, No. 32, S6. See dso 3 American Museum, 338,
841; I EUiot'sDeb. 307,306; Id. 31 5, 3 16; id. 3*21 to:m; 2 Elliot's Deb.
196 to 204 ; M'CuUock Y.SlaU of Maryland, 4 Wheat R. 316, 4:33 to 436;
9 Wheaton's R. 199,200,201 ; 12 Wheaton's R. 448.— Whether a
state can tax an instrument, created by the national government, to ac-
. complisb national objects, will be hereafter considered.
9 The Federalist, No. 33, 36 ; 1 Elliot's Deb. 307, 308 ; Id, 321, 322.
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OH. XIV.] POWERS or CONORS8S — TAXES. 413
^ 940, The states, with this concurrent power, will
be entirely safe, and have ample resources to meet all
their wants, whatever they may be, although few public
expenses, comparatively speaking, vvill fall to their lot
to provide for. They wUl be chiefly of a domestic cha-
racter, and affecting internal polity ; whereas, the re-
sources of the Union will cover the vast expenditures,
occasioned by foreign intercourse, wars, and other
charges necessary for the safety and prosperity of the
Union. The mere civil list of any country is always
small ; the expenses of armies, and navies, and foreign
relations unavoidably great. There is no sound reason,
why the states should possess any exclusive power
over sources of revenue, not reqmred by their wants.
But there is the most urgent propriety in conceding to
the Union all, which may be commensurate by their
wants. Any attempt to discriminate between the
sources of revenue would leave too much, or too little
to the states. If the exclusive power of extenial
taxation were given to the Union, and of external taxa-
tion to the states, it would, at a rough calculation, prob-
ably give to the states a conmiand of two thirds of the
resources of the community, to defray from a tenth to
a twentieth of its expenses ; and to the Union, one third
of the resources of. the community, to defray from nine
tenths to nineteen twentieths of its expenses. Such
an unequal distribution is wholly indefensible. And it
may be added, that the resources of the Union would,
or might be diminished exactly in proportion to the m-
crease of demands upon its treasury ; for (as has
been abeady seen) war, which brings the great expen-
ditures, narrows, or at least may narrow the resources of
taxation from duties on imports to a very alarming de-
gree. If we enter any other line of discrunination, it
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414 coirsTiTimoN or the u. states, [book ni.
wUl be equally difficult to adjust the proper proporticms ;
for the inquiry itself, in respect to the future wants, ^ as
well of the states, as of the Union, and their relative
proportion, must involve elements, for ever changing,
and incapable of any precise ascertainment Too
much, or too little would for ever be found to belong to
the states ; and the states, as well as the Union, might
be endangered by the very precautions to guard against
abuses of power.^ Any separation of the subjects of
revenue, which could have been fallen upon, would
have amounted to a sacrifice of the interests of the
Union to the power of the individual states ; or of a
surrender of important functions by the latter, which
would have removed them to a mean provincial servi-
tude, and dependence.*
§ 941. Other objections of a specious character
were urged against confiding to congress a general
power of taxation. Among these, none were insisted
on with more frequency, and earnestness, than the in-
capacity of congress to judge of the proper subjects
of taxation, considering the diversified interests, and
pursuits of the states, and the impracticability of re-
presenting in that body all their interests and pursuits.'
The principal pressure of this argument has been al-
ready examined, in the survey already taken ot the
i The Federalist, No. 34; J Tucker's Black. Comm. App. 934,235,
236.
I s The Federalist calculated, that tlie highest prohahle sum, required
for the ordinary permanent expenses of any state government, would
not exceed a million of dollars. But that of the Union, it was supposed,
could not be susceptible of any exact measure. The Federalist, No.
34.
3 The Federalist, No.a5, 36 ; 1 Elliot's Deb. 297 to 300 ; Id. 309 to
3ia 1 Tucker's Black. Comm. App. 237, 238 ; 2 Elliot's Deb. 98; Id.
185, 186 to 188 ; Id. 201, 20^, 203 ; Id. 232, 236 ; 3 £lliot'« Debatei,
77 to 91.
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CH. XIT.] P0WBR8 OF COKGRESS-^^TAXEI. 415
structure and oi^nization of the senate, and house of
Representatives* In truth, if it has any real force, or
efficacy, it is an argument against any national gov-
ernment, having any efficient national powers ; and it
is not necessary to repeat the reasoning, on which the
expediency, or necessity of such a government has been
endeavoured to be demonstrated. And, in respect to the
particular subject of taxation, there is quite as much rea-
son to suppose, that there will be an adequate assemblage
of experience, knowledge, skill, and wisdom, in congress,
and as adequate means of ascertaining the proper bearing
of all taxes, whether direct, or indirect, whether affect-
ing-agriculture, commerce, or manufactures, as to dis-
charge any other functbns delegated to congress. To
suppose otherwise, is to suppose the Union unpractica-
bie, or mischievous.^
^ 942. Other objections were raised on the ground
of the multiplied means of influence in the njaiional
government, growing out of the appointments to office,
necessary in the collection of the revenues ; the host
of officers, which would swarm over the land, like
locusts, to devour its substance ;,and the terrific op-
pressions, resulting from double taxes, and harsh, and
arbitrary regulations.* These objections were an-
swered, as well might be supposed, by appeals to com-
mon sense, and common experience; and they are the
less necessary now to be refuted, since in the actual
practice of the government they have been proved to
be visionary, and Macious, the dreams of speculative
statesmen, indulging their love of mgenious paradoxes,
1 The Federalist, No. 35, 36, 41, 45 ; 1 Tucker's Black. Comm. App.
244, 245.
3 The Federalist, No 36 ; 2 Elliot's Debates 52, 53, 70; Id. 206 ; 3
Elliot's Debates, 282, 263 ; 2 Amesican Musetun, 543.
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416 coirsTiTUTioir of the v. states, [book ni.
or the suggestions of fear, stimulated by discontent, or
carried away by phantoms of the imagination.^
§ 943. But another extraordinary objection, which
shows, how easily men may persuade themselves of the
truth of almost any proposition, which, temporary inter-
ests or excitements induce them to believe, was urged
from the North ; and it was, that the impost would be a
partial tax ; and that the southern states will pay but little
in comparison with the northern. It was refuted by
unanswerable reasoning ;' and would hardly deserve
mention, if the opposite doctrine had not been recently
revived and propagated with abundant zeal at the South,
that duties on importations fallivith the most calamitous
inequality on the southern states. Nay, it has been
seriously urged, that a single southern state is burthen-
ed with the payment of more than half of thfe whole
duties levied on foreign goods throughout the Union.
§ 944. Again ; it was objected, that there was no
certainty, that any duties would be laid on importations ;
for the southern states might object to all imposts of
this nature, as they have no manufactures of their own,
and consume more foreign goods, than the northern
states ; and, therefore, direct taxes would be the com-
mon resort to s»upply revenue.' To which no other
answer need be given, than, that the rule of apportion-
ment, as well as the inequalities of such taxes, would»
undoubtedly, produce a strong disinclination in the na-
tion, and especially in the southern states, to resort
to them, unless under extraordinary circumstances.*
f 1 The Federalist, No. 156 ; 3 American Mu8eym,338, 341 ; 1 Elliot's
Deb. 81, 293, 204, 300 to 302 ; Id. 337, 338 ; 2 Elliot's Deb. 98 ; Id.
198 to 204.
9 See Mr. Ellsworth's Speech, 3 Aroeiican Museum, 338, 340.
3 1 Elliot's Debates, 90, 91.
4 1 Tuck. Black. Comm. App. 234 to 238 ; TBe Federalist, No. 13.
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CH. XIV.] POWERS OF 00NORE8S — TAXES. 417
An objection, of a directly opposite character, was
also taken ; viz. that the power of laying direct taxes
was not proper to be granted to the national govern-
ment, because it was unnecessary, impracticable, unsafe,
and accumulative of expense.^ This objection also was
shown to be imfounded; and, indeed, under certain
exigencies, which have been ah*eady alluded to^ the na-
tional government might for want of it be utterly pros-
trated.*
^ 945. Other objections were urged, which it seems
unnecessary to enumerate, as they were either tempo-
rary in their nature, o|* were mere auxiliaries to those
ah^ady mentioned. The experience of the national
government has hitherto shown the entire safety, prac">
ticability, and even necessity of its possessmg the
general power of taxation. The states have exercised
a concurrent power without obstruction or inconve^
nience, and enjoy revenues adequate to all their wants;
more adequate, indeed, than they could possibly pos-
sess, if the Union were abolished, or the national
government were not vested with a general power of
taxation, which enables it to provide for all objects of
common defence and general wel£sa*e. The triumph of
the friends of the constitution, in securing this great
fundamental source of all. real effective national sove-
reignty, was most signal ; and it is the noblest monu«
ment of their wisdom, patriotism, and independence.
Popular feelmgs, and popular prejudices, and local
interests, and the pride of state authority, and the jeal-
31, 36 ; 1 Elliot's Debates, 61, 63 ; 2 Elliot's Debates, 105 ; 3 Elliot's De-
bates, 77 to 91 ; 8 Jouni. of Continent. Congress, 16th Dec. 1783, p. 203*
1 3 Elliot's Debates, 197 to 304 ; Id. 308, 333, 335 ; 3 Elliot's Debates,
77,91.
9 Ibid.
VOL. II. 63
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418 CONSTITUTION OF THE U. STA^Si* [BOOK HI.
ousy of state sovereignty, were all against thenu Yet
they were not dismayed ; and by steadfast appeals to
reason, to the calm sense of the people, and to the
lessons of history, they subdued (^position, and. won
ccmfidence. Without the possession of this power, the
constitution would have long since, like the confedera-
tion, have dwindled down to an empty pageant It
would have become an unreal mockery, deluding our
hopes, and exciting our fears. It would have flitted
before us for a moment with a pale and ineffectual light,
and then have departed for ever to the land of shad-
ows. There is so much candour and force in the
remarks of the learned American commentator cm
Blackstone^ on this subject, that they deserve to be
cited in this place.* ** A candid review of this part of
the federal constitution cannot fail to excite our just
applause of the principles, upon which it is founded.
All the arguments against it appear to have been drawn
torn the mexpediency of establishing such a form of
government, rather than from any defect in this part of
the system, admitting, that a general government was
necessary to the happiness and prosperity of the states
individually. This great primary question being once
decided in the affirmative, it might be difficult to prove,
that any part of the powers granted to congress in this
clause ought to have been altogether withheld : yet
being granted, rather as an ultimate provision in any
possible case of emergency, than as a means of ordi-
nary revenue, it is to be wished, that the exercise rf
powers, either oppressive m then* operation, or mcon-
sistent with the genius of the people, or irreconcilable
to their prejudices, might be reserved for cogent occa-
sions, which might justify the temporary recourse to a
1 J Tuck. Black. Comm. App. 346.
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CH. XIV.] POWERS OF C0N6IUB88 — TAXES. 419
lesser evil, as the means of avoiding one more perma-
nent, and of greater magnitude.''
§ 946. The language of the constitution is, ^ Congress
^ shall have power to lay and collect taxes, duties, im-*
^ posts, and excises,'' &c. ^ But all duties^ imposts^ and
*^ excises shall be uniform throughout the United States.*^
A distinction is here taken between taxes, and duties,
imposts, and excises ; and, indeed, there are other
parts of the constitution respecting the taxing power,
(as will presently be more fully seen,) such as the regu-
lations respecting direct taxes, the prohibition of taxes
or duties on exports by the United States, and the
prohibition of imposts or duties by the states on im-
ports or exports, which require an attention to this dis-
tinction.
§ 94.7 In a general sense, all contributions imposed
by the government upon individuals for the service of
the state, are called taxes, by whatever name they may
be known, whether by the name of tribute, tythe,
talliage, impost, duty, gabel, custom, subsidy, aid, supply,
excise, or other name.^ In this sense, they are usually
divided mto two great classes, those, which are dh-ect,
and those, which are indirect Under the former de-
nomination are included taxes on land, or real property,
and under the latter, taxes on articles of consumption.'
The constitution, by giving the power to lay and collect
taxes in general terms, doubtless meant to include all
sorts of taxes, whether direct or indirect* But, it may
be asked, if such was the intention, why were the sub-
^ See 2 Staart's Polit Econ. 485 ; 1 Tuck. Black. Comm. App. 232 ;
1 Black. Comm. 308 ; 3 Dall. R. 171 ; Smith's Wealth of Nations, B. 3,
cb. 3, B. 5, cb. 2, P. 1, P. 2, art 4. '
9 The Federalist, No. 21, 36; 1 Tuck. Black. Comm. 233, 238, 239 ;
Smith's Wealth of Nations, B. 5, cb. 2, Pt 2, art 1 and 2, and App.
3 Lov^^ibmrox^hy. Bfoi^e, 5 Wheat R. 317, 318, 319.
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420 CONSTITUTION OF THE U. STATES. [BOOK UU
sequent words, dutiesy imposts and excises^ added in
the clause ? Two reasons may be suggested ; the first,
that it was dcme to avoid all possibility of doubt in the
Gcmstniction of the clause, since, in common parlance,
the word taxes is sometimes applied in contradistinction
to duties, imposts, and excises, and, in the delegation of
so Tital a power, it was desirable to avdd all possible
misconception of this sort ; and, accordingly, we find,
m the very first draft of the constitution, these explana-
tory words are added.^ Another reason was, that the
constitution prescribed different rules of laying taxes in
different cases, and, therefore, it was indispensable to
make a discrimination between the classes, to which
each rule was meant to apply/
§ 948. The second section of the first article, which
has been already commented on for another purpose,
declares, that ^^ direct taxes shall be apportioned among
^ the several states, which may be included within this
** Union, according to their respective numbers." The
fourth clai^e of the ninth section of the same article
(which would regularly be commented on in a fiiture
page) declares, that " no capitation, or other du-ect tax,
^ shall be laid, unless in proportion to the census ot
^enumeration herein before directed to be taken.*'
And the clause now under consideration, that ^^ all du-
^ duties, imposts, and excises shall be uniform through-
** out the United States.*' Here, then, two rules are
prescribed, the rule of apportionment (as it is called)
for direct taxes, and the rule of uniformity for duiies^
impostSy and excises. If there are any other kinds of
taxes, not embraced in one or the other of these two
classes, (and it is certainly diflScult to give fiill effect to
1 Journal of Convention, 2:20.
9 IfyWm V. UniUd SlaUs, 3 Dall. 171, 174.
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CH. Xiy.] POWERS OF COKGRESS — TAXEl^. 421
the wwds of the coastitution without supposing them
to exist,) it would seem, that congress is left at full
liberty to levy the same by either rule, or by a mixture
of both rules, or perhaps by any other rule, not incon-
sistent with the general purposes of the constitution.^
It is evident, that ^duties, imposts, and excises^ are
indirect taxes in the sense of the constitution. But the
difficulty still remains, to ascertain^ what taxes are com-
prehended under this description ; and what under the
description of direct taxes. It has been remarked by
Adam Smith, that the private revenue of individuals
arises ultimately from three diflferent sources, rent,
profit, and wages ; and, that every public tax must be
finally paid fix)m some one, or all of these differeiit
sorts of revenue.' He treats all taxes upon land, or
the produce of land, or upon houses, or parts, or ap-
pendages thereof (such as hearth taxes and window
taxes,) under the head of taxes upon rent ; all taxes
upon stock, and money at interest, upon other personal
property yielding an income, and upon particular em-
ployments, or branches of trade and business, under
the head of taxes on profits ; and taxes upon salaries
under the head of wages. He treats capitation taxes
and taxes on consumable articles, as mixed taxes, falling
upon all or any of the different species of revenue.' , A
fiill consideration of these different classifiations of
taxes belongs more properly to a treatise upon political
economy, than upon constitutional law.
, ^ 949. The word " duties '' has not, perhaps, in all
cases a very exact signification, or rather it is used
sometimes in a larger, aud sometimes in a narrower
' 1 Ht^Um V. United Stales, 3 Dall. R. 171.
« Smith's Wealth of Nations, B. 5. ch. 2, P. 2.
^ Smith's Wealth of Nations, B. 5, cb. 2, P. 3, art 1, 3, 3, 4.
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422 coirsTiTirriON or the v. states, [book iir.
sense. In its large sense, it is rery nearly an eqoiva*
lent to taxes, embracing all impositions or charges levied
on persons Or things.^ In its more restrained sense, it
is often used as equivalent to " customs,'* which appel-
lation is usually applied to those taxes> which are paya-
ble upon goods and merchandise imported, or exported^
and was probably given on account of the usual and
constant demand of them for the use of kings, states, and
governments.' In this sense, it is nearly synonymous
with ^ imposts^'' which is sometimes used m the large
sense of taxes, or duties, or impositioi\s, and sometimes
in the more restradned sense of a duty on imported
goods and merchandise.' Perhaps it is not unreasona-
ble to presume, that this narrower sense might be in
the minds of the framers of the constitution, when this
clause was adopted, since, in another clause, it is sub-
sequently provided, that "No tax or duty shall be laid
•*on articles exported from any state ;*' and, that " No
^ state shall, without the consent of congress, lay
'^any imposts or duties on imports or exports^ except
^ what may be absolutely necessary for executing its
•* inspection laws.'* * There is another provision, that
"No state shall, vnthout the consent of congress,
"lay any duty of tonnage j^ &c. ; from which, pertiaps,
it may be gathered, that a tonnage duty, (by which is
to be understood, not the ancient custom in England,
so called, on wines imported,^ but a duty cki the ton-
1 See The Federalist, No. 36.
s Smith's Wealth of Nations, B. 4, ch. 1, P. 3, B. 5, ch. 9, art 4 ;
Hale on Coatomst Uarg. Tracts, p. 115, &c.; 1 Black. Ck»im. 813^ 314,
315, 316 ; Com. Dig. Prerogative, D. 43 to D. 49.
3 The Federalist, No. 30 ; 3 Elliot's Debates, 289.
4 Mr. Madison is of opinion, that the terms, tmposts, and duties, in these
clauses, are used as synonymous. There is much force in bis sugges-
tions. Mr. Ma'lison's Letter to Mr. Cabell, 18th Sept 1828.
5 1 Black. Comm. 315; Hale on Customs, Harg. Law Tracts, p. 3»
ch.7,ch. 14, ch. 15.
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CR. XIV.] POWBRS OF CONOItESS"— TAXES. 423
nage of ships arid vessels,) was not deemed an impostj
strictly, but a duty* However, it must be admitted,
that little certainty can be arrived at from such slight
changes of phraseology, where the words are suscepti-
ble of various interpretations, and of more or less expan-
sion. The most, that can be done, is, to offer a probable
conjecture from the apparent use of words in a con-
nexion, where it is desirable not to deem any one
superfluous, or synonymous with the others. A learned
commentator has supposed, that the words, 'Muties
and imposts,'' in the constitution, were probably
intended- to comprehend every species of tax or contri-
bution, not included under the ordinary terms, ^^ taxes
and excises.*** Another learned judge has said,*
^what is the natural and common, or technical and
appropriate, meaning of the words, duty and excise^ it
is not easy to ascertain. They present no clear or
precise idea to the mind. Different persons will annex
different significations to the terms." On the same
occasion, another learned judge said, '< The term, diUy^
is the most comprehensive, next to the generical term,
tax; and practically in Great Britain, (whence we take
our general ideas of taxes, duties, imposts, excises,
customs, &c.) embraces taxes on stamps, tolls for pas-
sage, &c. and is not confined to taxes on importations
only."*
^ 940. ^ Excises " are generally deemed to be of an
opposite nature to "imposts," in the restrictive sense of
the latter term; and are defined to be an inland imposi-
tion, paid sometimes upon the consumption of the com-
1 1 Tuck. Black. Comm. App. 24a
» Mr. Justice Patterson in HyUon v. U. Stales, 3 Dall. Rrl7I, 177.
8 Mr. Justice Chase, Ibid. 174. See The Federalist, No. 36.
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424 coNSTiTirrroN of the u. states, [book in.
modity, or frequently upcm the retail sale, which is the
last stage before the consumption.^
§ 951. But the more important inquiry is, what are
direct taxes in the sense of the constitution, since they
are required to be laid by the rule of apportionment,
and all indirect taxes, whether they fall under the head
of ^ duties, imposts, or excises," or under any other
description, may be laid by the rule of uniformity. It is
dear, that citation taxes,' or, as they are more com-
monly called, poll taxes, that is, taxes upon the poUs^
heads, or persons, of the contributors, are direct taxes,
for the constitution has expressly enumerated them, as
such. *^No capitation, or other direct tax, shall be
laid," &c. is the language of that instrument.
^ 952. Taxes on lands, houses, and other permanent
real estate, or on parts or appurtenances thereof^ have
always been deemed of the same character, that is, di-
rect taxes.' It has been seriously doubted, i^ m the
sense of the constitution, any taxes are direct taxes,
except those on polls or on lands* Mr. Justice Chase,
in Hyttan v. UnUed StateB, (3 DalL R. 171,) said, "I
am inclined to think, that the du'ect taxes, contemplated
by the constitution, are only two, viz. a capitation or poll
tax simply, without regard to property, profession, or
other circumstancie, and a tax on land. I doubt, wheth-
er a tax by a general assessment of personal property
within the United States is included within the term.
I 1 BlaoL Comro. 318; 1 Tuck. Black. Comm. App. 341; Smith't
Wealth of Nations, B. 5, ch. 2, art 4 ; 2 Elliot's Debates, 209 ; 3 Elliot's
Debates, 289, 290.
< Bee 2 Smith's Wealth of Nations, B. 5, ch. 2, art 4 ; The Federal-
ist, No. 36 ; 2 Elliot's Debates, 209.
3 1 Tuck. Black. Comm. App. 232, 233 ; Hylton v. United l^aies, 3
Dall. R. 171 : The Federalist, No. 21 ; Loughborough v. Blake^ 5 Wheat
R. 317 to 325.
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CH. XIV.] POWERS OF CONGRESS TAXES. 425
direct tax." Mr. Justice Patterson, in the same case,
said, " It is not necessary to determine, whether a tax
on the produce of land be a direct or an indirect tax.
Perhaps the immediate product of land, in its original
and crude state, ought to be considered, as a part of the
land itself. .When the produce is converted into a
manufacture, it assumes a new shape, &c. Whether
* direct taxes,' in the sense of the constitution, compre-
hend any other tax, than a capitation tax, or a tax on
land, is a questionable point, &c. I never entertained
a doubt, that the principal, I will not say the only, ob-
jects, that the framers of the constitution contemplated,
as falling within the rule of apportionment, were a capi-
tation tax and a tax on land." And he proceeded to
state, thatthe rule of apportionment, both as regards rep-
resentatives, and as regards direct taxes, was adopted
to guard the Southern states against undue impositions
and oppressions in the taxing of slaves. Mr. Justice Ire-
dell, in the same case, said, " Perhaps a direct tax, in the
sense of the constitution, can mean nothing but a tax
on something inseparably annexed to the soil ; some-
thing capable of apportionment under all such circum-
stances. A land or poll tax may be considered of this
description. The latter is to be considered so, particu-
larly imder the present constitution, on account of the
slaves in the Southern states, who give a ratio in the
representation in the proportion of three to five;
Either of these is capable of an apportionment. In
regard to other articles, there may possibly be consid-
erable doubt." The reasoning of the Federalist seems
to lead to the same result.^
^ 953. In the year 1794, congress passed an act,*
laying duties upon carriages for the conveyance of per-/
» the Federalist, No. 31, 36. « Act of 1794, ch. 45.
VOL. II. 54
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426 CONSTITUTION OF THE U. STATES. [BOOK III*
sons, which were kept by or for any person, for his
own use, or to be let out to hire, or for the conveying
of passengers, to wit, for every coach the yearly sum of
ten dollars, &c. &c. ; and made the levy uniform
throughout the United States. The constituticMiality of
the act was contested, in the case before stated,* upon
the ground, that it was a direct tax, and so ought to be
apportioned among the states according to their num«
bers. After solemn argument, the Supreme Court
decided, that it was not a direct tax within the meaning
of the constitution. The grounds of this decision, as
stated in the various opinions of the judges, were ; first,
the doubt, whether any taxes were direct in the sense
of the constitution, but capitation and land taxes, as has
been already suggested; secondly, that in cases of
doubt, the rule of apportionment ought not to be fa-
voured, because it was matter of compromise, and in
itself radically indefensible and wrong; thirdly, the
monstrous inequality and injustice of the carriage tax,
if laid by the rule of apportionment, which would show,
that no tax of this sort could have been contemplated
by the convention, as within the rule of apportionment ;
fourthly, that the terms of the constitution were satisfied
by confining the clause, respecting direct taxes, to capi-
tation and land taxes ; fifthly, that, accurately speaking,
all taxes on expenses or consumption are indirect taxes,
and a tax on carriages is of this kind ; and, sixthly,
(what is probably of most cogency and force, and df
itself decisive,) that no tax could be a direct one in the
sense of the constitution, which was not capable of ap-
portionment according to the rule laid down in the con-
stitution. Thus, suppose ten dollars were contemplated
as a tax on each coach or post-chaise in the United
1 8 Dalla8*o Reports, 171.
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CH. XIV.] I»0W£R8 OF CONGRESS TAXES. 427
States, and die number of such carriages in the United
States were one hundred and five, and the num-
ber of representatives in congress the same. This
would produce ten hundred and fifty dollars. The
share of Virginia would be ^'- parts, or ^190 ; the
share of Connecticut would be y|-o parts* or $7(k
Suppose, then, in Virginia, there are fifty carriages, the
sum of $190 must be collected fi*om the owners of these
carriages, and apportioned among them, which would
make each owner pay $3*80. And suppose, in Con-
necticut, there are but two carriages, the share of that
state ($70) must be paid by the owners of those two-
carriages, viz. $35 each. Yet congress, in such a case,
intend to lay a tax of but ten dollars on each coach. And
if, in any state, there should be no coach or post-chaise
owned, then, there could be no apportionment at alL
The absurdity, therefore, of such a mode of taxation
demonstrates, that such a tax cannot be a direct tax
in the sense of the constitution. It is no answer to this
reasoning, that congress, having determined to raise
such a sum of money, as such a tax on carriages would
produce, might apportion the sum due by the rule of
apportionment, and then order it to be collected on
different articles, selected in each state. That would be,
not to lay and collect a tax on carriages, but on the
articles, which were made contributory to the payment
Thus, the tax might be called a tax on carriages, and
levied on horses. And the same objection would lie
to an apportionment of the sum, and then a general
assessment of it by congress upon all articles.^
I S Dallas's Reports, 171 ; Rawle oq Const ch. 9; 4 Elliot's Deb.
5242 ; 1 Kent's Comm. Lect 1% p. 239, 240 ; 1 Tuck. Black. Comm!
App.3d4.
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428 CONSTITUTION OF THE IT. STATES. [bOOK III.
§ 954. Having endeavoured to point out the leadmg
distinctions between direct and indirect taxes, and that
duties, imposts, and excises, in the sense of the consti-
tution, belong to the latter class, the order of the sub-
ject would naturally lead us to the inquiry, why direct
taxes are required to be governed by the rule of appor-
tionment ; and why "duties, imposts, and excises" are
required to be uniform throughout the United States.
The answer to the former will be given, when we come
to the farther examination of certain prohibitory and
restrictive clauses of the constitution on the subject of
taxation. The answer to the latter may be given in a
few words. It was to cut off all undue preferences of
one state over another in the regulation of subjects
affecting their common interests. Unless duties, im-
posts, and excises were uniform, the grossest and most
oppressive inequalities, vitally affecting the pursuits and
employments of the people of different states, might
exist The agriculture, commerce, or manufactures of
one state might be built up on the ruins of those of
another ; and a combination of a few states in congress
might secure a monopoly of certain branches of trade
and business to themselves, to the injury, if not to the
destruction, of their less favoured neighbours. The con-
stitution throughout all its provisions is an instrument of
checks, and restraints, as well as of powers. It does not
rely on confidence in the general government to pre-
serve the interests of all the states. It is founded in a
wholesome and strenuous jealousy, which, foreseeing the
possibility of mischief, guards with solicitude against any
exercise of power, which may endanger the states, as
far as it is practicable. If this provision, as to uni-
formity of duties, had been omitted, although the power
might never have been abused to the injury of the
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CH. XIV.] POWERS OF CONGRESS — TAXES. 429
feebler states of the Union, (a presumption, which his-
tory does not justify us in deeming quite safe or certain;)
yet it would, of itself, have been sufficient to demolish,
in a practical sense, the value of most of the other
restrictive clauses in the constitution. New York and
Pennsylvania might, by an easy combination with the
Southern states, have destroyed the whole navigation
of New England. A combination of a different char-
acter, between the New England and the Western
states, might have borne down the agriculture of the
South ; and a combination of a yet different character
might have struck at the vital interests of manufactures.
So that the general propriety of this clause is established
by its intrinsic political wisdom, as well as by its ten-
dency to quiet alarms, and suppress discontents.^
§ 956. Two practical questions of great importance
have arisen upon the construction of this clause, either
standing alone, or in connexion with other clauses, and
incidental powers, given by the constitution. One is,
whether the government has a right to lay taxes for any
other purpose, than to raise revenue, however much
that purpose may be for the common defence. Or gen-
eral welfare. The other is, whether the money, when
raised, can be appropriated to any other purposes, than
such, as are pointed out in the other enumerated pow-
ers of congress. The former involves the question,
whether congress can lay taxes to protect and encour-
age domestic manufactures ; the latter, whether con-
gress can appropriate money to internal improvements.
Each of these questions has given rise to much animat-
ed controversy ; each has been affirmed and denied,
with great pertinacity, zeal, and eloquent reasoning ;
1 See 4 EUiot's Deb. 235, 236.
t
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430 CONSTITUTION OF THE U. STATES. [BOOK III.
each has become promment in the struggles of party ;
and defeat in each has not hitherto silenced opposition,
or given absolute security to victory. The contest is
often renewed ; and the attack and defence maintained
with equal ardour. In discussing this subject, we are
treading upon the ashes of yet unextinguished fires, —
incedimus per ignes suppositos cineri doloso; — and while
the nature of these Commentaries requires, that the
doctrine should be freely examined, as maintained on
either side, the result will be left to the learned reader,
without a desire to influence his judgment, or dogmati-
cally to announce that belonging to the commentator.
§ 956. First, then, as to the question, whether con-
gress can lay taxes, except for the purposes of revenue.
This subject has been already touched, in considering
what is the true reading, and interpretation of the clause,
conferring the power to lay taxes. If the reading and
interpretation, there insisted on, be correct^ it furnishes
additional means to resolve the question, now under
consideration.
§ &57. The argument against the constitutional au-
thority is understood to be miintained on the fdlowing
grounds, which, though applied to the protection of
manufactures, are equally applicable to all other cases,
where revenue is not the object The general govern-
ment is one of specific powers, and it can rightfully
exercise only the powers expressly granted, and those,
which may be ** necessary and proper '* to carry them
into effect ; all others being reserved expressly to the
states, or to the people. It results necessarily, that
those, who claim to exercise a power under the consti-
tution, are bound to show, that it is expressly granted, or
that it is "necessary and proper,'' as a means to execute
some of the granted powers. No such proof has been
offered in regs^d to the protection of manufactures.
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CH. XIT.] POWERS OF C0NQR£8S TAXES* 431
^ 958. It is true, that the eighth section of the first
article of the constitution authorizes congress to lay
and coUect an impost duty ; but it is granted, as a tax
power, for the sole purpose of revenue ; a ^ower, in its
nature, essentially different from that of imposing pro-
tective, or prohibitory duties. The two are incompati-
ble ; for the prohibitory system must end in destroying
the revenue from imports. It has been said, that the
system is a violation of the spirit, and not of the letter
of the constitution. The distinction is not material. The
constitution may be as grossly violated by acting against
its meaning, as against its letter. The constitution
grants to congress the power of imposing a duty on
imports for revenue, which power is abused by being
converted into an instrument for rearing up the indus-
try of one section of the country on the ruins of another.
The violation, then, consists in using a power, granted
for one object, to advance another, and that by a sacri-
fice of the original object. It is in a word a violation
of perversion^ the most dangerous of all, because the most
insidious and difficult to resist. Such is the reasoning
emanating from high legislative authority.^ On another
interesting occasion, the argument has been put in the
following shape. It is admitted, that congress has
power to lay and collect such duties, as they may deem
necessary for the purposes of revenue, and mthin these
Umits so to arrange those duties, as incidentally , and to
that extent to give protection to the manufacturer. But
the right is denied to convert, what is here denominated
1 See the exposition and protest, reported by a committee of the
house of representatives, of South Carolina, on 19th of December, 1829,
and adopted ; the draft of which has been attributed to Mr; Vice Presi-
dent Calhoun. I have followed, as nearly as practicable, the very words
of the report
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432 CONSTITimON of the it. states, [book III.
the incidental, into the principal power; and transcend-
ing the limits of revenue, to impose an additional duty
substantially and exclusively for the purpose of aflTording
that protecflon. Congress may countervail the regula-
tions of a foreign power, which may be hostile to our
commerce ; but their authority is denied permanently
to prohibit all importation, for the purpose of securing
the home maricet exclusively to the domestic manufac-
turer ; thereby destroying the commerce they were
entrusted to regulate, and fostering an interest, with
which they have no constitutional power to interfere.
To do so, therefore; is a palpable abuse of the taxing
power, which was conferred for the purpose of revenue ;
and if it is referred to the authority to regulate com-
merce, it is as obvious a perversion of that power, since
it may be extended to an utter annihilation of the objects,
which it was intended to protect^
^ 969. In furtherance of this reasoning, it has been
admitted, that under the power to regulate commerce,
congress is not limited to the imposition of duties upon
imports for the sole purpose of revenue. It may im-
pose retaliatory duties on foreign powers ; but these
retaliatory duties must be imposed for the regulation of
commerce, not for the encouragement of manufactures.
The power to regulate manufactures, not having been
confided to congress, they have no more right to act
upon it, than they have to interfere with the systems
of education, the poor laws, or the road laws, of the
states. Congress is empowered to lay taxes for rev-
1 This is extracteil from the address of the Free Trade Convention, at
Philadelphia, in Oct ia31, p. 33, 34, attributed to the pen of Mr. Attorney
General Berrien. Mr. Senator Hayne, in his Speech, 9 January, 1832^
says, that be does not know, where the constitutional objections to the
tariff system are better summed up^ than in this address, (p. 31, 32.)
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CH. XIY.] POWfiltS OF CONGRESS — TAXES. 433
enue, it U true ; hut there is no power to encourage^
protect^ or meddle with manufactures.^
§ 960. It is unnecessary to consider the argument
at present, so fietr as it bears upon the constitutional
authority of congress to protect or encourage manufac-
tures ; because that subject will more properly come
under review, in all its bearings, under another head,
viz. the power to regulate commerce, to which it is
nearly allied, and from which it is more usually derived.
Stripping the argument, therefore, of this adventitious
circumstance, it resolves itself into this statement The
power to lay taxes is a power exclusively given to raise
revenue, and it can constitutionally be applied to no
other purposes. The application for other purposes is
an abuse of the power ; and, in fact, however it may be
in form disguised, it is a premeditated usurpation of
authority. Whenever money or revenue is wanted for
constitutional purposes, the power to lay taxes may be
applied to obtain it. When money or revenue is not
so wanted, it is not a proper means for any constitu-
tional end.
^961. The argument m favour of the constitutional
authority is grounded upon the terms and the intent of
the constitution. It seeks for the true meaning and
objects of the power accordmg to the obvious sense of
the language, and the nature of the government pro-
posed to be established by that instrument. It relies
upon no strained construction of words;; but demands
a fair and reasonable interpretation of the clause, with-
out any restrictions not naturally implied in it, or in the
context It will not do to assume, that the clause was
intended solely for the purposes of raismg revenue ; and
1 CoL Drayton's Oration, at Charleston, 4th of July, 1831, p. 13, 14.
VOL. II. 65
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434 CONSTITUTCON OF THE U. STATES. [BOOK III.
then argue, that being so, the power cannot be consti-
tutionally applied to any o±er purposes. The very
point in controversy is, whe±er it is restricted to pur-
poses of revenue. That must be proved ; and cannot
be assumed, as the basis of reasoning.
§ 962. The language of the constitution is, ^ Congress
^ shall have power to lay and collect taxes, duties, im-
** posts, and excises." If the clause had stopped here,
and remained in this absolute form, (as it was in fact,
when reported in the first draft in the convention,) there
could not have been the slightest doubt on the subject.
The absolute power to lay taxes includes the power in
every form, in which it may be used, and for every pur-
pose, to which the legislature may choose' to apply it
This results from the very nature of such an unrestrict-
ed power. A fortiori it might be applied by congress
to purposes, for which nations have been accustomed
to apply to it Now, nothing is more clear, firom the
history of commercial nations, than the fact, that the
taxing power is often, very often, applied for other pur-
poses, than revenue. It is often applied, as a r^ulation
of commerce. It is often applied, as a virtual prohibi-
tion upon the importation of particular articles, for the
encouragement and protection of domestic products,
and industry ; for the support of agriculture, commerce,
and manufactures ;^ for retaliation upon foreign monq>-
olies and injurious restrictions ;* for mere purposes of
state policy, and domestic economy; sometimes to
banish a noxious article of consumption ; sometimes, as
a bounty upon an mfant manufacture, or agricultural
1 Hamilton's Report on Manufactures, in 1791.
9 See Mr. Jefferson's Report on Commercial Restrictions, in 1793 ;
5 Marshall's Life of Washington, ch. 7, p. 483 to 487 ; 1 Wait's State
Piipers, 432, 434.
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CH. Xir.] POWERS OF CONGRESS — TAXES. 436
product ; sometimes, as a temporary restraint of trade;
sometimes, as a suppression of particular employments;
sometimes, as a prerogative power to destroy competi-
tion, and secure a monopoly to the government I^
§ 963. I^ then, the power to lay taxes, bemg general,
may embrace, and in the practice of nations does em-
brace, all these objects, either separately, or in combi-
nation, upon what foundation does the argument rest,
which assumes one object only, to the exclusion of all
the resti which insists, m eflFect, that because revenue
may be one object, therefore it is the sole object of the
power? which assumes its own construction to be cor-
rect, because it suits its own theory, and denies the
same right to others, entertaining a different theory ?
If the power is general in its terms, is it not an abuse
of all fair reasoning to insist, :that it is particular? to
desert the import of the language, and to substitute other
and different language ? Is this allowable in regard to
any instrument ? Is it allowable in an especial manner,
as to constitutions of government, grovnng out of the
rights, duties, and exigencies of nations, and looking to
an mfinite variety of circumstances, which may require
very different applications of a given power ?
^ 964. In the next place, then, is the power to lay
taxes, given by the constitution, a general power ; or
is it a limited power ? If a limited power, to what ob-
jects is it limited by the terms of the constitution ?
§ 965. Upon this subject, (as has been already stat-
ed,) three different opinions, appear to have been held
by statesmen of no common sagacity and ability. The
first is, that the power is unlimited ; and that the subse-
quent clause, ** to pay the debts, and provide for the
** common defence and general welfare,'* is a substan-
1 See Smith's Wealth of Nations, B. 5, ch. 2, ajt. 4.
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436 CONSTITUTION OF THE U. STATES. [bOOK HI.
tive, independent power. In the yiew of those, ^o
maintain this opinion, the power, being general, cannot
with any consistency be restrained to purposes of
revenue.
§ 966. The next is, that the power is restrained by
the subsequent clause, so that it is a power to lay taxes
in order to pay debts, and to provide for the common
defence and general welfare. Is raising revenue the
only proper mode to provide for the common defence
and general welfare 1 May not the general welfare, in
the judgment of congress, be, 4n given circumstances,
as well provided for, nay better provided for, by prohibi-
tory duties, or by encouragements to domestic industry
of all sorts ? If a tax of one sort, as on tonnage, or for-
eign vessels, will aid commerce, and a tax on foreign
raw materials will aid agriculture, and a tax on imported
febrics will aid domestic manufactures, and so promote
the general welfare ; may they not be all constitutionally
united by congress in a law for this purpose 1 If con-
gress can unite them all, may they not sustam them sev-
eraUy in separate laws ? Is a tax to aid manufactures^
or agriculture, or commerce, necessarily, or even natur-
ally, against the general welfare, or the common defence?
TVlio is to decide upon such a point? Ccmgress, to whom
the authority is given to exercise the power? Or any
other body, state or national, which may choose to
assume it ?
^ 967. Besides ; if a particular act of ccmgress, not
for revenue, should be deemed an excess of the pow-
ers ; does it follow, that all other acts are so? If the
common defence or general welfare can be promoted
by laymg taxes in any other manner, than for revenue,
who is at liberty to say, that congress cannot constitu-
tionally exercise the power for such a purpose ? No
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CH. KIT.] P0WBR8 OF COITGWCM — TAXE8* 437
one has a right to say, that the common defence and
general welfare can never be promoted by lading taxes,
except for revenue. No one has ever yet been bold
enough to assert such a proposition. Different men
have entertamed opposite opinions on subjects of this
nature. It is a matter of theory and speculation, of
political economy, and national policy, and not a matter of
power. It may be wise or unwise to lay taxes, except
for revenue ; but the wisdom or inexpediency of a
measure is no test of its constitutionality. Those, there*
fore, who hold the opinion above stated, must unavoid-
ably maintain, that the power to lay taxes b not con*
fined to revenue ; but extends to all cases, where it is
proper to be used for the common defence and gen-
eral welfare.^ One of the most effectual means of de-
fence agmnst the injurious regulations and pdicy of
foreign nations, and which is most commonly resorted
to, b to apply the power of taxation to the products
and manufactures of foreign nations by way of retalia-
tion ; and, short of war, this is found to be practically
that, which is felt most extensively, and produces the
most immediate redress. How, then, can it be imag-
ined for a moment, that this was not contemplated by
the framers of the constitution, as a means to provide
for the common defence and general welfare ?
^ 968. The tlurd opinion is, (as has been already
stated,) that the power is restricted to such specific
objects, as are contained in the other enumerated pow-
ers. Now, if revenue be not the sole and exchmce
means of carrying into effect all these enumerated
powers, the advocates of this doctrine must maintain
vrith those of the second opinion, that the power is not
^ See Hamilton's Report on Manufactures, in 1791 ; 1 Hamilton's
Works, (edit 1810,) 230 ; U ElUot's Debates, 34^.
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438 COKSTITUTIOW OF THE U. STATES. [BOOK III.
limited to purposes of revenue. No man will pretend
to say, that all those enumerated powers have no other
objects, or means to effectuate them, than revenue.
Revenue may be one mode ; but it is not the sole
mode. Take the power " to regulate commerce.**
Is it not clear from the whole history of nations, that
laying taxes is one of the most usual modes of regulat-
ing commerce 1 Is it not, in many cases, the best
means of preventing foreign monopolies, and mischiev-
ous commercial restrictions 1 In such cases, then, the
power to lay taxes is confessedly not for revenue.
If so, is not the argument irresistible, that it is not lim-
ited to purposes of revenue ? Take another power, the
power to coin money and regulate its value, and that of
foreign coin ; might not a tax be laid on certain foreign
coin for the purpose of carrying this into effect by sup-
pressing the circulation of such coin, or regulating its
value ? Take the power to promote the progress of
science and useful arts; might not a tax be Isdd on
foreigners, and foreign inventions, in aid of this power,
so as to suppress foreign competition, or encourage
domestic science and arts ? Take another power, vital
in the estimation of many statesmen to the security of
a republic, — the power to provide for organizing, arm-
ing, and disciplining the militia ; may not a tax be laid
on foreign arms, to encouiage the domestic manufac-
ture of arms, so as to enhance our security, and give
uniformity to our organization and discipline ? Take
the power to declare war, and its auxiliary powers ;
may not congress, for the very object of providmg for
the effectual exercise of these powers, and securing a
permanent domestic manufacture and supply of pow-
der, equipments, and other warlike apparatus, impose
a prohibitory duty upon foreign articles of the same
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CH. XIY.] POWERS OF COKGRESS -^ TAXES. 43i^
nature? If congress may, in any, or all of these cases,
lay taxes ; ±en as revenue constitutes, upon the very
basis of the reasoning, no object of the taxes, is it not
clear, that the enumerated powers require the power
to lay taxes to be more extensiv^ely construed, than .for
purposes of revenue ? It would be no answer to say,
that the power of taxation, though m its nature only a
power to raise revenue, may be resorted to, as an im-
plied power to carry into effect these enumerated pow-
ers in any effectual manner. That would be to contend,
that an express power to lay taxes is not co-extensive
with an implied power to lay taxes ; that when the ex-
press power is given, it means a power to raise rev-
enue only ; but when it is implied, it no longer has any
regard to Ais object. .How, then, is a case to be dealt
with, of a mixed nature, where revenue is mixed up
with other objects in the framing of the law ?
^ 969. If, then, the power to lay taxes were ad-
mitted to be restricted to cases within the enumerated
powers ; still the advocates of that doctrine are com-
pelled to admit, that the power must be construed, as
not confined to revenue, but as extending to all other
objects withm the scope of those powers. Where the
power is expressly given, we are not at liberty to say,
that it is to be implied. Being given, it may certainly
be resorted to, as a m^ans to effectuate all the powers,
to which it is appropriate ; not, because it is to be im-
plied in the grant of those powers ; but because it is
expressly granted, as a substiantive power, and may be
used, of course, as an auxiliary to them.*
§ 970. So that, whichever construction of the power
to lay taxes is adopted, the same conclusion is sustain-
^ See Mr. Madison's Letter to Mr. Cabell, 18th Sept 1828.
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440 CONSTITUTION OF TH£ V. STATES. [BOOK III.
ed, that the power to lay taxes is ;iot by the constitu-
tion confined to purposes of revenue. In point of fact,
it has never been limited to &uch purposes by con-
gress ; and all the great functionaries of the govern-
ment have constantly maintained the doctrine, that it
was not constitutionally so limited.^
§ 971. Such is a general summary of the reasoning
on each side, so far as it refers to the power of laying
taxes. It will be hereafter resumed in examining the
nature and extent of the power to regulate commerce.
^ 972. The other question is, whether ccmgress has
any power to s^propriate money, raised by taxation or
otherwise, for any other purposes, than those pointed
out in the enumerated powers, which follow the clause
respecting taxation. It is said, ^* raised by taxation or
otherwise ;'^ for there may be, and in fact are, other
sources of revenue, by which money may, and does
come into the treasury of the United States otherwise,
than by taxation ; as, for instance, by fines, penalties,
and forfeitures ; by sales of the public lands, and inter-
ests and dividends on bank stocks ; by captures and
prize in times of war ; and by other incidental profits
and emoluments growing out of governmental transac-
tions and prerogatives. But, for all the common pur-
poses of argument, the question may be treated, as one
growing out of levies by taxation.
§ 973. The reasoning, upon which the opmion, ad-
verse to the authority of congress to make appropria-
1 The present Commentaries were written before the appearance of
Mr. John Q. Adams's Letter to Mr. Speaker Stevenson, in 1832.
That Letter (as has been already intimated) contains a very able and
elaborate vindication of the power to lay taxes, as extending to all pm^
poses of the common defence and general welfare. It is the fullest re-
sponse to the Letter of Mr. Madison to Mr. Speaker Stevenson, 27th
Nov. 1890, which has ever yet been given.
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CH. XirJ] POWERS OF CONOREiS — TAXES. 441
tions not within the scope of the enumerated powers, is
maintained, has been already, in a great measure, stat-
ed in the preceding examination of the grammatical
construction of the clause, givmg the power to lay
taxes.^ The controversy is virtually at an end, if it
is once admitted, that the words, " to provide for the
common defence and general welfare,** are a part and
qualification of the power to lay taxes ; for then, con-
gress has certainly a right to appropriate money to any
purposes, or m any manner, conducive to those ends.
The whole stress of the argument is, therefore, to
establish, that the words, " to provide for the common
defence and general welfare,** do not form an independ-
ent power, nor any qualification of the power to lay taxes.
And the argument is,.that they are " mere general terms,
explained and limited by the subjoined specifications.**
It is attempted to be fortified (as has been already
seen) by a recurrence to the history of the confedera-
tion ; to the successive reports and alterations of the
tax clause in the convention ; to the inconveniencies of
such a large construction ; and to the supposed impos-
sibility, that a power to make such appropriations for
the common defence and general welfare, should not
have been, at the adoption of the constitution, a subject
of great alarm, and jealousy ; and as such, resisted in and
out of the state conventions.*
1 Se^ Virginia Resolutions, 7th Jan. 1800; Mr. Madison^s Letter to
Mr. Speaker Stevenson, 27th Nov. 1830. See also 4 Elliot's Debatee,
280, 281 ; 2 Elliot's Debates, 344.
^ The following summary, taken from President Madison's Veto
Message on the Bank Bonus Bill for Internal Improvements, 3d March,
1817,''' contains a very clear statement of the reasoning. *^To refer the
power in question," (that is, of constructing roads, canals, and other in-
ternal improvements,) ** to the clause, to provide for theconmon defenee
* 4 Elliof • Debates, 980, 961.
VOL. Ji. 56 .
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442 CONiTITUTION OF THE U. STATES. [BOOK III.
§ 974. The argument in favour of the power is de-
rived, in the first place, fi-om the language of the
clause, conferring the power, (which it is admitted in
its literal terms covers it ; *) secondly, fi-om the nature
of the power, which renders it in the highest degree
expedient, if not indispensable for the due operations of
the national government ; thu-dly, fi'om the early, con-
stant and decided maintenance of it by the govern-
ment and its functionaries, as well as by many of our
ablest statesmen fit)m the very commencement of the
constitution. So, that it has the language and intent
and general welfare, would," says he, " be contrary to the established
roles of interpretation, as rendering the special and careful enumeration
of powers, which follow the clause, nugatory and improper. Such a
view of the constitution would have the effect of giving to congress a
general power of legislation, instead of the defined and limited one,
hitherto understood to belong to them ; the terms, * ttie common defence
and general welfare,' embracing every object and act within the pur-
view of a legislative trust It would have the effect of subjecting both
the constitution and laws of the several states, in all cases not specific-
ally exempted, to be superceded by the laws of congress ; it being ex-
pressly declared, that the constitution of the United States, and the
laws made in pursuance thereof, shall be the supreme law of the land, and
the judges of every state shall be bound thereby, any thing in the con-
stitution or laws of any state to the contrary notwithstanding. Such a
view of the constitution, finally, would have the effect of excluding Ae
judicial authority of the United States from its participation in guarding
the boundary hetioeen the legislative powers of the general and state goV'
emments ; inasmuch as questions relating to the general welfare, bemg
questions of policy and expediency, are unsusceptible of judicial cogniz-
ance and decision. A restriction of the power *to provide for the com-
mon defence and general welfare,* to cases, which are to be provided
for by the expenditure of money, would still leave within the legislative
power of congress all the great and most important measures of gov-
ernment, money being the ordinary and necessary means of carrying
them into execution.'' It will be perceived at once, that this is the same
reasoning insisted on by Mr. Madison in the Virginia Report and Reso-
lutions, of 7th Jan. 1800 ; and in his Letter to Mr. Speaker Stevenson,
of 27th Nov. 1890 ; and by the same genUeman in the Debate on the
Cod-fishery Bill, in 1793. 4 Elliot's Debates, 236.
1 Mr. Madison's Letter to Mr. Speaker Stevenson, 27th Nov. 1890.
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CH. XIV.] POWERS OF CONGRESS — TA^ES. 443
of the text, and the practice of the government to sus-
taux it against an artificial doctrine, set up on the other
side.
§ 975. The argument derived irom the words and
intent has been so fully considered already, that it
cannot need repetition. It is summed up with great
force m the report of the secretary of the treasury * on
manufactures, in 1791. "The national legislature,*^
says he, "has express authority to lay and collect taxes,
duties, imposts, and excises ; to pay the debts and
provide for the common defence and general welfare,
with no other qualifications, than that all duties, im-
posts, and excises, shall be uniform throughout the
United States ; that no capitation or other direct tax
shall be laid, unless in proportion to numbers ascertain-
ed by a census, or enumeration taken on the princ^le
prescribed in the constitution ; and that no tax or
-duty shall be laid on articles exported fix)m any state.
These three qualifications excepted, the power to raise
money is plenary and mdefinite. And the objects, to
which it may be appropriated, are no less comprehen-
sive, than the payment of the public debts, and the
providing for the common defence and general welfare.
The terms 'general welfare * were doubtless intended
to signify more, than was expressed or imported in
those, which preceded ; otherwise numerous exigen-
cies, incident to the affairs of the nation, would have
been left without a provision. The phrase is as com-
prehensive, as any, that could have been used ; because
it was not fit, that the constitutional authority of the
Union to appropriate its revenues should have been
restricted within narrower limits, than the general wel-
^ Mr. HamDton.
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444 coNSTiTUTioir of the u* states* [book hi.
fere ; and because this necessarily embraces a vast vari-
ety of particulars, which are susceptible neither of spe-
cification, nor of definition. It is, therefore, of necessity
left to the discretion of the national legislature to pro-
nounce upon the objects, which concern the general
wel£aa^ and for which, under that description, an ap-
propriatbn of money is requisite and proper. And
there seems no room for a doubt, that whatever cojq-
cems the general interests of learning, of agriculture,
of manu&ctures, and of commerce, are within the
sphere of the national councils, so far as regards an ap-
plication of money* The only qualification of the gener-
ality of the phrase in question, which seems to be admis-
sible, is this ; that the object, to which an appropriation
of money is to be made, must be general^ and not local ;
its operation extending in fact, or by possibility, through-
out the Union, and not being confined to a particular
spot. No objection ought to arise to this construction.
fix>m a supposition, that it would imply a power to do^
whatever else should appear to congress conducive to
the general welfare. A power to appropriate money
with this latitude, which is granted in express terms,
would not carry a power to do any other thing, not
authorized in the constitution either expressly, or by
fair implication." *
§ 976. But the most thorough and elaborate view,
which perhaps has ever been taken of the subject, will
be found in the exposition of President Monroe^ which
^ There is no doubt, that President Washington' fully concurred in
this opinion, as his repeated recommendations to congress of objects of
Ikis sort, especially of the encouragement of manufactures, of leanung,
of a university, of new inventions, of agriculture, of commerce and nav-
igation, of a military academy, abundantly prove. See 5 Marshall's
Life of Washington, ch. 4, p. 231, 232; 1 Wait's State Papers, 15 ;
2 Wait's SUtc Papers, 109, 110, 111.
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CH. XIV.] POWERS OF. CONGRESS — TAXES. 446
accompanied his message respecting the bill for the
repairs of the Cumberland Road, (4th of May, 1822.)
The following passage contains, what is most du*ect to
the present purpose; and, though long, it will amply re-
ward a diligent perusal After quotmg the clause of
the constitution respecting the power to lay taxes, and
to provide for the common defence and general welfare,
he proceeds to say,
^977. "That the second part of this grant gives a
right to appropriate the public money, and nothing
more, is evident from the following considerations:
(1.) If the right of appropriation is not given by this
clause, it b not given at all, there bemg no other grant
in the constitution, which gives it directly, or which has
any bearing on the subject, even by implication, except
the two following : first, the prohibition, which is con-
tained in the eleventh of the enumerated powers, not
to appropriate money for the support of armies for a
longer term than two years ; and, secondly, the declara-
tion in the sixth member or clause of the ninth section
of the first article, that no money shall be drawn from
the treasury, but in consequence of appropriations made
by law. (2.) This part of the grant has none of the
characteristics of a distinct and original power. It is
manifesdy incidental to the great objects of the first
branch of the grant, which authorizes congress to lay
and collect taxes, duties, imposts, and excises ; a power
of vast extent, not granted by the confederation, the
grant of which formed or 3 of the principal mducements
to the adoption of this constitution. If both parts c^
the grant are taken together, as they must be, (for the
one follows immediately after the other in the same
sentence,) it seems to be impossible to give to the latter
any other c(Histniction, than that contended for. Con-
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446 coNSTiTimoN or the u. states, [book hi.
gress shall have power to lay and collect taxes, duties,
imposts, and excises. For what purpose ? To pay
the debts, and provide for the common defence and
general welfare of the United States ; an arrangement
and phraseology, which clearly show, that the latter
part of the clause was intended to enumerate the pur-
poses, to which the money thus raised might be appro-
priated. (3.) If this is not the real object and fair con-
struction of the second part of this grant, it follows,
either that it has no import or operation whatever, or
one of much greater extent, than the first part This
presumption is evidently groundless m both mstances ;
in the first, because no part of the constitution can be
considered as useless ; no sentence or clause in it without
a meaning. In the second, because such a construction,
as would make the second part of the clause an original
grant, embracing the same objects with the first, but with
much greater power than it, would be in the highest
degree absurd. The order generally observed m grants,
an order founded m common sense, since it promotes
a clear understanding of their import, is to grant the
power mtended to be conveyed in the most fiill and
explicit manner ; and then to explain or qualify it, if ex-
planation or qualification should be necessary. This
order has, it is believed, been invariably observed m aD
the grants contained in the constitution. In the next
place, because, if the clause m question is not construed
merely as an authority to appropriate the public money,
it must be obvious, that it conveys a power of indefinite
and unlimited extent ; that there would have been no
use for the special powers to raise and support armies,
and a navy ; to regulate commerce ; to csdl forth the
militia ; or even to lay and collect taxes, duties, imposts,
and excises. An unqualified power to pay the debts
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CH. XIV.] POWERS OP CONGRESS TAXES. 447
and provide for the common defence and general wel-
fare, as the second part of this clause would be, if con-
sidered, as a distinct and separate grant, would extend
to every object, in which the pubfic could be interested.
A power to provide for the common defence would
give to congress the command of the whole force, and
of all the resources of the Union ; but a right to provide
for the general welfare would go much further. It
would, in effect, break down all the barriers between
the states and the general government, and consolidate
the whole under the latter.
^ 978. " The powers specifically granted to congress,
are what are called the enumerated powers, and are
numbered in the order, in which they stand ; among
which, that contained in the first clause holds the first
place in point of importance. If the power created by
the latter part of the clause is considered an original
grant, unconnected with, and independent of, the first,
as in that case it must be ; then the first part is entirely
done away, as are all the other grants in the constitu-
tion, being completely absorbed in the transcendent
power granted in the latter part. But, if the clause be
construed in the sense contended for, then every part has
an important meaning and effect ; not a line, or a word,
in it is superfluous. A power to lay and collect taxes,
duties, imposts, and excises, subjects to the call of con-
gress every branch of the public revenue, internal and
external ; and the addition to pay the debts and pro-
vide for the common defence and general welfare, gives
the right of applymg the money raised, that is, of ap-
• propriating it to the purposes specified, according to a
^proper construction of the terms. Hence it follows,
that it is the first part of the clause oriy, which gives a
power, which affects in any manner the power remain-
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448 CONSTITUTION OF THC U. STATES. [bOOK ID.
ing to the states ; as the power to raise money from the
people, whether it be by taxes, duties, imposts, or ex-
cises, though concurrent in the states, as to taxes and
excises, must necessarily do. But the use or applica-
tion of the money, after it is raised, is a power alto-
gether of a different character. It imposes no burthen
on the people, nor can it act on them in a sense to take
power from the states ; or in any sense, in which power
can be controverted, or become a question between the
two governments. The application of money raised
under a lawful power, is a right or grant, which may be
abused. It may be applied partially among the states,
or to improper purposes in our fordgn and domestic
concerns ; but still it is a power not felt in the sense of
other powers ; since the only complaint, which any state
can make of such partiality and abuse is, that some other
state or states have obtained greater benefit from the
application, than, by a just rule of apportionment, they
were entitled to. The right of appropriation is, thei-e-
fore, from its nature, secondary and incidental to the
right of raising money ; and it was proper to place it in
the same grant, and same clause with that right By
finding them then in that order, we see a new proof of
the sense, in which the grant was made, corresponding
with the view herein taken of it.
§ 979. The last part of this grant, which provides,
that all duties, imposts, and excises shall be uniform
throughout the United States, furnishes another strong
proof, that it was not intended, that the second part
should constitute a distinct grant, in the sense above
stated, or convey any other right, than that of appropri-
ation. This provision operates exclusively on the power
granted in the first part of the clause. It recites three
branches of that power — duties, imposts, and ex-
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CH. XIV.] POWER! or COITGRESS — TAXES. 449
cises — those only, on which it could operate ; the rule,
by which the fourth, that is, taxes, should be laid, being
already provided for in another part of the constitution.
The object of this provision is, to secure a just equality
among the states in the exercise of that power by con-
gress. By placing it after both the grants, that is, after
that to raise, and that to appropriate the public money,
and makmg it apply to the first only, it shows, that it
was not mtended, that the power granted in the second
should be paramount to, and destroy that granted m
the first It shows, also, that no such formidable
power, as that suggested, had been granted in the
second, or any power, against the abuse of which it
was thought necessary specially to provide. Surely, if
it was deemed proper to guard a specific power, of
limited extent and well known import, against injustice
and abuse, it would have been much more so, to have
guarded against the abuse of a power of such vast ex-
tent, and so indefinite, as would have been granted, by
the second part of the clause, if considered as a distinct
and original grant
^ 980. ** With this construction all the other enume-
rated grants, and indeed all the grants of power contain-
ed in the constitution, have their full operation and effect
They all stand well together, fulfilling the grfeat purpo-
ses intended by them. Under it we behold a great
scheme consistent in all its parts, a government msti-
tuted for national purposes, vested with adequate
powers for those purposes, commencmg with the most
important of all, that of revenue, and proceeding, m
regular order, to the others, with which it was deemed
proper to endow it ; all too drawn with the utmost cir-
cumspection and care. How much more consistent is
this construction with the great objects of the institu-
VOL. II. 57
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450 coirsTiTUTioN or the v. 8tatx8« [book ni.
tioQ, and with the high character of the enlightened and
patriotic citizens, who framed it, as well as of those,
who ratified it, than one, which subverts every sound
principle and rule of construcdon, and throws every
thing into confusion.
^981. **I have dwelt thus long on this part of the
subject, from an earnest desire to fix, in a clear and
satis£su;tory manner, the import of the second part of
this grant, well knowing, fi*om the generality of the
terms used, their tendency to lead into error. I m-
dulge a strong hope, that the view, herem presented,
win not be without effect, but will tend to sansfy the
unprejudiced and impartial, that nothing more was
granted by that part, than a power to appropriate the
public money raised under the other part. To what
extent that power may be carried, will be the next ob-
ject of inquiry.
^ 982. ^ It is contended, on the one side, that, as the
national government is a government of limited powers,
it has no right to expend money, except in the per-
formance of acts, authorized by the other specific grants,
according to a strict construction of their powers ; that
this grant, in neither of its branches, gives to congress
discretionary power of any kind ; but is a mere instru-
ment in its hands, to carry into effect the powers con-
tamed in the,other grants. To this construction I was
inclmed in the more early stage of our gpvemment ;
but, on further reflection and observation, my mind has
undergone a change, for reasons, which I will frankly
unfold.
§ 983. ** The grant consists, as heretofore observed,
of a two-fold power; the first, to raise, and ihe second,
to appropriate the public money ; and the terms used
in both instances are general and unqualified. Each
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CH. XIY.] POWERS or 00NGR£S8 — TAXES. 461
branch was obviously drawn with a view to the other,
and the import of each tends to illustrate that of the
othen The grant to raise money gives a power over
every subject, from which revenue may be drawn ; and
is made in the same manner with the grants to declare
war; to raise and support armies and a navy ; to regu-
late commerce; to ests^lish post-offices and post roads;
and with all the other specific grants to the general
government. In the discharge of the powers contained
in any of these grants, there is no other check, than
that, which is to be found in the great principles of our
system — the responsibUity of the representative to his
constituents. If war, for example, is necessary, and
congress declare it for good cause, their constituents
will support them in it. A Uke support will be given
them for the faithful discharge of their duties under any
and every other power, vested m the United States.
It affords to the friends of our free governments the
most heart-felt consolation to know, and from the best
evidence, — our own experience, — that, in great emer-
gencies, the boldest measures, such as form the strongest
appeals to the virtue and patriotism of the people, are
sure to obtain their most decided approbation. But
should the representative act corrupdy, and betray his
trust, or otherwise prove, that he was unworthy of the
confidence of his constituents, he would be equally sure
to lose it, and to be removed, and otherwise censured,
according to his deserts. The power to raise money
by taxes, duties, imposts, and excises, is alike unquali-
fied ; nor do I see any check on the exercise of it,
other than that, which applies to the other powers above
recited, — the responsibility of the representative to his
constituents. Congress know the extent of the public
engagements, and the sums necessary to meet them ;
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452 CONSTITUTION OF THE U. STATES. [bOOK III.
they know, how much may be derived fr^m ear h branch
of revenue without pressmg it too far ; and, paying due
regard to the interests of the people, they likewise
know, which branch ought to be resorted to in the first
instance. From the commencement of the govern-
ment, two branches of this power (duties and imposts)
have been in constant operation, the revenue from
which has supported the government in its various
branches, and met its other ordinary engagements. In
great emei^encies, the other two (taxes and excises)
have likewise been resorted to ; and neither was the
right nor the policy ever called in question.
§ 984 ^ If we look to the second branch of this
power, that, which authorizes the appropriation of the
money thus raised, we find, that it is not less general
and unqualified, than the power to raise it More com-
prehensive terms, than to *pay the debts and provide
for the common defence and general welfsEire,' could not
have been used. So mtimately connected with, and
dependent on each other, are these two branches of
power, that had either been lunited, the Umitation would
have had a like effect on the other. Had the power to
rabe money been conditional, or restricted to special
purposes, the appropriation must have corresponded
with it ; for none but the money raised could be appro-
priated, nor could it be appropriated to other purposes,
than those, which were permitted. On the other hand,
if the right of appropriation had been restricted to cer-
tain purposes, it would be useless and improper to raise
more, than would be adequate to those purposes. It
may fairiy be inferred, that these restramts or checks
have been carefully and intentionally avoided. The
power in each branch is alike broad and unqualified ;
and each is drawn with peculiar fitness to the other ;
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CH. XIY.] POWERS or CONGRESS — TAXES. 463
the latter requiring terms of great extent and force to
accommodate the former, which have been adopted ;
and both placed in the same clause and sentence. Can
it be presumed, that all these circumstances were so
nicely adjusted by mere accident 1 Is it not more just
to conclude, that they were the result of due delibera-
tion and design ? Had it been intended, that congress
should be restricted in the appropriation of the public
money to such expenditures, as were authorized by a
rigid construction of the other specific grants, how easy
would it have been to have provided for it by a decla-
ration to that eflfect The omission of such declaration
is, therefore, an additional proof, that it was not intend-
ed, that the grant should be so construed.
^ 986. " It was evidendy impossible to have sub-
jected this grant, in either branch, to such restric-
tion, without exposing the government to very serious
embarrassment How carry it into effect? If the
grant had been made in any degree dependent upon
the states, the government would have experienced the
fate (^ the confederation. Like it, it would have with-
ered, and soon perished. Had the Supreme Court
been authorized, or should any other tribunal, distinct
from the government, be authorized to interpose its
veto, and to say, that more money had been raised
under either branch of this power, (that is, by taxes,
duties, imposts, or excises,) than was necessary ; that
such a tax or duty \\b3 useless ; that the appropriation
to this or that purpose was unconstitutional ; the move-
ment might have been suspended, and the whole sys-
tem disoi^anized. It w^s impossible to have created
a power within the government, or any other power,
distinct from congress and the executive, which should
control the movement of the government in this respect
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454 CONSTITUTIOlf OF THB r. 8TATX8. [BOOK III.
and not destroy it Had it been declared by a clause
in the constitution, that the expenditures under this
grant should be restricted to the construction, which
D ight be given of the other grants, such restraint, though
the most innocent, could not have fail^ to have had an
injurious effect on the vital principles of the govern-
ment, and often on its most important measures. Those,
M^ho might wish to defeat a measure proposed, might
construe the power relied cm in support of it, in a nar-
row and contracted manner, and in that way fix a pre-
cedent inconsistent with the true import of the grant.
At other times, those, who favoured a measure, might
give to the power relied on a forced or strained con-
struction ; and, succeeding in the object, fix a precedent
in the opposite extreme. Thus it is manifest, that, if
the right of appropriation be confined to that limit,
measures may oftentimes be carried, or defeated by
considerations and motives, altogether independent oj^
and unconnected with, their merits, and the several
powers of congress receive constructions equally incon-
sistent with their true import. No such declaration,
however, has been made ; and from the fair import of
the grant, and, indeed, its positive terms, the inference,
that such was intended, seems to be precluded.
§ 986. "Many considerations of great weight operate
in fevour of this construction, while I do not perceive
any serious objection to it If it be established, it fol-
lows, that the words, * to provide for the common de-
fence and general welfare,' have a definite, safe, and
useful meanmg. The idea of their forming an original
grant with unlimited power, superceding every other
grant, is abandoned. They will be considered, simply,
as conveying a right of appropriation ; a right indispen-
sable to that of raising a revenue, and necessary to ex-
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CH. XIV.] P0WEK8 or 00NGM:88 — TAXES. 465
penditures uoder every grant By it, as already ob-
served, no new power will be taken from the states,
the money to be appropriated being raised under a
power already granted to congress. By it, too, the
motive for giving a forced or strained construction to
any of the other specific grants will, in most instances,
be diminished, and, in many, utterly destroyed. Thd
importance of this consideration cannot be too highly
estimated ; since, in addition to the examples already
given, it ought particularly to be recollected, that, to
whatever extent any specific power may be carried,
the right of jurisdiction goes with it, pursuing it through
all its incidents. The very important agency, which
this grant has in carrying into efiect every other grant,
is a strong argument m favour of the construction con-
tended for. All the other grants are limited by the
nature of the oflSces, which they have severally to per-
form ; each conveying a power to do a certain thing, and
that only ; whereas this is co-extensive with the great
scheme of the government itself. It is the lever, which
raises and puts the whole machinery in motion, and
continues the movement Should either of the other
grants fail, ui consequence of any condition or limitation
attached to it, or misconstruction of its powers, much
injury might follow ; but still it would be the failure of
one branch of power, of one item in the system only.
All the others might move on. But should the right to
raise and appropriate the public money be improperly
restricted, the whole system might be sensibly affected,
if not disorganized. Each of the other grants is limited
by the nature of the grant itself. This, by the nature
of the government only. Hence, it became necessary,
that, like the power to declare war, this power should
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, 456 CONSTITUTION OF TH£ V. STATES. [bOOK III.
be commensurate with the great scheme of the goyem-
ment, and with all its purposes.
§ 987. " If, then, the right to raise and appropriate
the public money is not restricted to the expenditures
under the other specific grants, accordmg to a strict
construction of their powers respectively, is there no
Umitation to it? Have congress a right to raise and
appropriate the public money to any, and to every pur-
pose, accordmg to their will and pleasure? They cer-
tainly have not The government of the United States
is a limited government, instituted for great national
purposes, and for those only. Odier interests are com-
mitted to the states, whose duty it is to provide for
them. Each government should look to the great and
essential purposes, for which it was instituted, and con-
fine itself to those purposes. A state government will
rarely, if ever, apply money to national purposes, with-
out making it a charge to the nation. The people of
the state would not permit it. Nor will congress be
apt to apply money in aid of the state administrations,
for purposes strictly local, in which the nation at large
has no interest, although the state should desire it.
The people of the other states would condemn it
They would declare, that congress had no right to tax
them for such a purpose, and dismiss, at the next
election, such of their representatives, as had voted for
the measure, especially if it should be severely felt I
do not think, that in offices of this kind there is much
danger of the two governments mistaking their inter-
ests, or their duties. I rather suspect, that they would
soon have a clear and distinct understanding of them,
and move on in great harmony."
§ 988. In regard to the practice of the government,
> it has been entirely m conformity to the principles here
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CH. XIV.] POWERS OF CONGRESS — TAXES. 457
laid down. Appropriations have never been limited by
congress to cases falling within the specific powers enu-
merated m the constitution, whether those powers be
construed in their broad, or their narrow sense. And
in an especial manner appropriations have been made
to aid internal improvements of various sorts, in our
roads, our navigation, our streams, and other objects of
a national character and importance.^ In spme cases,
not silendy, but upon discussion, congress has gone the
length of making appropriations to aid destitute foreign-
ers, and cities labouring under severe calamities ; as in
the relief of the St. Domingo refugees, m 1794, and
the citizens of Venezuela, who suffered from an earth-
quake m 1812.* An illustration equally forcible, of a
1 It would be impracticable to enumerate all these various objects of
appropriation in detail. Many of them will be found enumerated in
President Monroe's Exposition, of 4 of May, 1822. p. 41 to 45. The
annual appropriation i^cta speak a very strong language on this subject
Every president of the United States, except President Madison, seems
to have acted upon the same doctrine. President Jefferson can hardly
be deemed an exception. In his early opinion, already quoted, (4 Jeffer-
son's Corresp. 524,) he manifestly maintained it In his message to
congress, (2 Dec. J 806,*) he seems to have denied it In signing the
bill for the Cumberland Road, on 29th March, 1806,t he certainly gave
it a partial sanction, as well as upon other occasions. See Mr. Monroe's
Exposition, on 4th May, 1822, p. 41. But see 4 Jefferson's Corresp. 457,
where Mr. Jefferson adopts an opposite reasoning. President Jackson
has adopted it with manifest reluctance ; but he considers it as firmly
established by the practice of the government See his veto message
on the Maysville Road bill, 27 May, 1830, 4 Elliot's Deb. 333 to 335.
The opinions maintained in congress, for and against the same doctriney
will be found in 4 Elliot's Deb. 236, 240, 265, 278, 280, 284, 291, 292, 332,
334. Report on Internal Improvements, by Mr. Hemphill, in the house
of representatives, 10 Feb. 1831. See 1 K^nt Comm. Lect 12, p. 250,
251 ; Sergeant's Const Law, ch. 28, p. 311 to 314 ; Rawle on the Const-
ch. 9, p. 104 ; 2 United States Law Jour. AprU, 1826, p. 251, 264 to 282.
9 See act of 12 Feb. 1794, ch. 2 ; Act of 8 May, 1812, ch. 79 ; 4 Elli-
ot's Debates, 240.
* Wait's SUto P^Mn, 457, 458.
t Act of 1800, eh. 19.
VOL. II. 68
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458 COKSTITUTION OF THE U. STATES. [BOOK lU.
domestic character, is in the bounty given in the cod-
fisheries, which was strenuously resisted on constitu-
tional grounds in 1792 ; but which still maintains its
place in the statute book of the United States, *
§ 989, No more need be said upon this subject, in
this place. It will be necessarily resumed s^ain in the
discussion of other clauses of the constitution, and
especially of the powers to regulate commerce, to
establish post-offices and post-roads, and to make in-
ternal improvements.
§ 990. In order to prevent the necessity of recurring
again to the subject of taxation, it seems desirable to
bring together, in this connexion, all the remaining pro-
visions of the constitution on this subject, though they
are differently arranged in that instrument. The first
one is, " no capitation or other direct tax shall be laid,
" unless in proportion to the census, or enumeration,
"herein before directed to be taken.'* This includes
poll taxes, and land taxes, as has been already re-
marked.
§ 991. The object of this clause doubtless is, to
secure the Southern states against any undue propor-
tion of taxation ; and, as nearly as practicable, to over-
come the necessary inequalities of direct tax. The
South has a very large slave population ; and conse-
quently a poll tax, which should be laid by the rule of
uniformity, would operate with peculiar severity on
them. It would tax their property beyond its supposed
1 See act of congress, of 16 Feb. 1792, ch. 6 ; 4 Elliot's Debates, 234
to 238; Act of 1813, ch. 34 See also Hamilton's Report on Manufac-
tures, 1791, article. Bounties. — The Speech of the Hon. Mr. Grimk*, in
the senate of South Carolina, in Dec. 1828, and of the Hon. Mr. Hugger,
in the house of representatives of the same state, in Dec. 1830, contain
very elaborate and able expositions of the whole subject, and will reward
a diligent perusal.
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CH. XIV.] POWERS OF CONGRES8 TAXES. 459
relative value, and productiveness to white labour.
Hence, a rule is adopted, which, in effect, in relation to
poll taxes, exempts two fifths of all slaves from taxa-
tion ; and thus is supposed to equalize the burthen
with the white population.*
^ 992. In respect to direct taxes on land, the diffi-
culties of making a due apportionment, so as to equal-
ize the burthens and expenses of the Union according
to the relative wealth and ability of the states, was felt
as a most serious evil under the confederation. By
that instrument, (it will be recollected,) the appor-
tionment was to be among the states according to the
value of all land within each state, granted or surveyed
for any person, and the buildings and improvements
thereon, to be estimated in such mode, as congress
should prescribe. The whole proceedings to accom-
plish such an estimate were so operose and inconven-
ient, that congress, in April, 1783,^ recommended, as a
substitute for the article, an apportionment, founded on
the basis of population, adding to the whole number
of white and other free citizens and inhabitants, includ-
ing those bound to service for a term of years, three
fifths of all other persons, &c. in each state; which is
precisely the rule adopted in the constitution.
§ 993. Those, who are accustomed to contemplate
the circumstances, which produce and constitute na-
tional wealth, must be satisfied, that there is no common
standard, by which the degrees of it can be ascertamed.
Neither the value of lands, nor the numbers of the people,
which have been successively proposed, as the rule of
1 The 'Federalist, No. 21, 36, 54; 3 Dall. R. 171, 178; 1 Tucker's
Black. Comm.App. 236,287; 2 Elliot's Deb. 208 to 210; 3 Elliot's
Debates, 290; 3 Amer. Museum, 424 ; 2 Elliot's Deb. 338.
9 8 Joumal of Continental Congress, 184, 188, 198.
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460 CONSTITUTION OF THE D. STATES. [bOOK III.
State contributions, has any pretension to bemg deemed a
just representative of that wealth. If we compare the
wealth of the Netheriands with th^t of Russia or Ger-
many, or even of France, and at the same time com-
pare the total value of the lands, and the aggregate
population of the contracted territory of the former, with
the total value of the lands, and the aggregate population
of the immense regions of either of the latter kingdoms,
it will be at once discovered, that there is no compari-
son between the proportions of these two subjects, and
that of the relative wealth of those nations. If a like
parallel be run between the American states, it wll
furnish a similar result.* Let Virginia be contrasted
with Massachusetts, Pennsylvania with Connecticut,
Maryland with Virginia, Rhode-Island with Ohio, and
the disproportion will be at once perceived. The
wealth of neither will be found to be, in proportion to
numbers, or the value of lands.
^ 994. The truth is, that the wealth of nations de-
pends upon an infinite variety of causes. Situation,
soil, climate ; the nature of the productions ; the nature
of the government ; the genius of the citizens ; the de-
gree of information they possess ; the state of conmierce,
of arts, and industry ; the manners and habits of the
people ; these, and many other circumstances, too com-
plex, minute, and adventitious to admit of a particular
enumeration, occasion differences, hardly conceivable,
in the relative opulence and riches of different coun-
tries. The consequence is, that there c^ be no com-
mon measure of national wealth; and, of course, no gen-
eral rule, by which the ability of a state to pay taxes
can be determined,* The estimate, however fairly or
I The Tederaliflt, No. 21. a The Pederalirt, No. 21.
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CH. XIT.] POWERS OF CONGRESS — TAXES. 461
deliberately made, is open to many errors and inequal-
ities, which become the fruitful source of discontents,
controversies, and heart-burnings. These are sufficient,
in themselves, to shake the foundations of any national
government, when no common artificial rule is adopted
to settle permanently the apportionment; and every
thing is left open for debate, as often as a direct tax is to
be imposed. Even in those states, where direct taxes are
constantly resorted to, every new valuation or appor-
tionment is found, practically, to be attended with great
inconvenience, and excitements. To avoid these diffi-
culties, the land tax in England is annually laid according
to a valuation made in the reign of William the Third,
(1692,) and apportioned among the counties, according
to that valuation.* The gross inequality of this proceed-
ing cannot be disguised ; for many of the counties, then
comparatively poor, are now enormously increased in
wealth. What is Yorkshire or Lancashire now, with
its dense manufacturing population, compared with
what it then was 1 Even when the population of each
state is ascertained, the mode, by which the assessment
shall be laid on the lands in the state, is a subject of no
small embarrassment. It would be gross injustice to
tax each house or acre to the same amount, however
diflferent may be its value, or however different its
quality, situation, or productiveness. And in estimating
the absolute value, so much is necessarily matter of
opinion, that different judgments may, and will arrive
at different results. And in adjusting the comparative
values in different counties or towns, new elements of dis-
cord are unavoidably introduced. * In short* it may be
1 1 Black. Coram. 312, 3ia
s See the remarks of Mr. Jostice Patterson, in S^Uon v. VtUUd States^
3 DalL 171, 178, 179.
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462 CONSTITUTION OF THE U. STATES. [BOOK III.
affirmed ^thout fear of contradiction, that some .artifi-
cial rule of apportionment of a fixed nature is indispensa-
ble to the public repose ; and considering the peculiar
situation of the American states, and especially of the
slave and agricultural states, it is difficult to find any
rule of greater equality or justice, than that, which the
constitution has adopted. And it may be added, (what
was indeed foreseen,) that direct taxes on land will
not, fi-om causes sufficiently apparent, be resorted to,
except upon extraordinary occasions, to supply a press-
ing want.* The history of the government has abun-
dantly established the correctness of the remark ; for in
a period of forty years three direct taxes only have
been laid ; and those only with reference to the state
and operations of war.
§ 995. The constitution having, m another clause,
declared, that ^^ Representatives and direct taxes shall
^ be apportioned among the several states within this
"Union according to their respective numbers,'*
and congress having, in 1815,' laid a direct tax on the
District of Columbia, (according to the rule of appor-
tionment,) a question was made, whether congress had
constitutionally a right to lay such a tax, the district
not being one of the states ; and it was unammously
decided by the Supreme Court, that congress had such
a right. * It was further held, that congress, in lay-
mg a direct tax upon the states, was not copstitutionally
bound to extend such tax to the district, or the territo-
ries of the United States ; but, that it was a matter for
> 1 Tuck. Black. Comm. App. 234, 235, and note; Id. 236, 237;
3 Dall. R. 178, 179; Federalist, No. 21, 36; 2 Elliot's Deb. 208 to 2ia
« Act of 27 Feb. 1815, ch. 213.
9 Loughborough y. BlakCf 5 Wheaton's R. 317 ; Sergeant on Const
Law, ch. 28, p. 290 ; 1 Kent Comm. Lect 12, p. 241.
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CH. XIV.] POWERS OF CONGRESS — TAXES. 463
their discretion. *When, however, a direct tax is to
be laid on the district or the territories, it, can be laid
only by the rule of apportionment. The reasoning, by
which this doctrine is maintained, will be most satisfac-
torily seen by giving it in the very words used by the
court on that occasion.
^ 996. " The eighth section of the first article gives
to congress * power to lay and collect taxes, duties,
* imposts, and excises,' for the purposes thereinafter
mentioned. This grant is general, without limitation as
to place. It, consequently, extends to all places, over
which the government extends. If this could be doubt-
ed, the doubt is removed by the subsequent words,
which modify the grant. These words are, * but all
* duties, imposts, and excises shall be uniform through-
* out the United States.' It will not be contended, that
the modification pf the power extends to places, to
which the power itself does not extend. The power,
then, to lay and collect duties, imposts, and excises,
may be exercised, and must be exercised throughout
the United States. Does this term designate the
whole, or any particular portion of the American em-
pire ? Certainly this question can admit of but one
answer. It is the name given to our great republic,
which is composed of states and territories. The Dis-
trict of Columbia, or the territory west of the Missouri,
is not less within the United States, than Maryland or
Pennsylvania ; and it is not less necessary, on the prin-
ciples of our constitution, that uniformity in the imposi-
tion of imposts, duties, and excises should be observed
in the one, than in the other. Since, then, the power
to lay and collect taxes, which includes direct taxes,
is obviously co-extensive with the power to lay and
collect duties, imposts, and excises, and since the latter
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464 CONSTITUTION OF THE U. STATES. ' [BOOK III.
extends throughout the United Stsrtes, it follows, that
the power to impose direct taxes also extends through-
out the United States.
§ 997. " The extent of the grant being ascertamed,
how far is it abridged by any part of the constitution 1
The twentieth section of the first article declares, that
* representatives and direct taxes shall be apportioned
* among the several states, which may be included within
* this Union, according to their respective numbers.'
§ 998. **The object of this regulation is, we think, to
furnish a standard, by which taxes are to be apportion-
ed, not to exempt from their operation any part of our
country. Had the intention been to exempt from taxa-
tion those, who are not represented in congress, that
intention would have been expressed in direct terms.
The power having been expressly granted, the excep-
tion would have been expressly made. But a limita-
tion can scarcely be ssud to be insinuated. The words
used do not mean, that direct taxes shall be imposed
on states only, which are represented, or shall be ap-
portioned to representatives ; but that direct taxation,
m its application to states, shall be apportioned to num-
bers. Representation is not made the foundation of
taxation. If, under the enumeration of a representative
for every 30,000 souls, one state had been found to
contain 59,000, and another 60,000, the first would
have been entitled to only one representative, and the
last to two. Their taxes, however, would not have
been as one to two, but as fifty-nine to sixty. This
clause was obviously not intended to create any ex-
emption fi-om taxation, or to make taxation dependent
on representation, but to furnish a standard for the
apportionment of each on the states.
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OH. XIV.] P0WEB8 or OOKORSSS — TAXES. 466
^ 999. ^ The fourth paragraph of the ninth section of
the same article, will next be considered. It is in these
words : ^ No capitation, or other direct tax, shall be
Maid, unless in proportion to the census, or enumera-
^ tion herein before directed to be taken.'
§ 1000. ^^ The census referred to is in that clause of
the constitution, which has just been considered, which
makes numbers the standard, by which both representa*
tives and direct taxes shall be apportioned among
the states. The actual enumeration is to be made
* within three years after the first meeting of the con-
* gress of the United States, and within every subse-
* quent term of ten years, in such manner as they shall
* by law direct.'
§ 1001. "As the direct and declared object of this
census is, to furnish a standard, by which ^ representa-
tives, and direct taxes, may be apportioned among the
several states, which may be included within this
Union,' it will be admitted, that the omission to extend
it to the district, or the territories, would not render it
defective. The census referred to is admitted to be a
census exhibiting the numbers of the respective States.
It cannot, however, be admitted, that the argumei^t,
which limits the application of the power of direct taxa-
tion to the population contahied in this census, is a just
one. The language of the clause does not imply this
restriction. It is not, that * no capitation^ or other di-
rect tax shall be laid, unless on those comprehended
vnthin the census herein before directed to be taken,'
but ^unless in proportion to' that census. Now this pro-
portion may be applied to the district or the territories.
If an enumeration be taken of the population in the dis-
trict and the territories, on the same principles, on which
the enumeratk)n of the respective states is mad^ then
VOL. II. 6d
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466 ooirsTmmoN of thc u* states, [book hi.
the kformatioii is acquired, by which a direct tax may
be imposed on the district and territories, ^in propor«
tion to the census or enumeration' which the constitu-
,tion directs to be taken.
§ 1002. ^The standard, then, by which direct taxes
must be laid, is iq)plicable to this district, and will ena-
ble congress to apportion on it its just and equal share
of the burthen, with the same accuracy as on the re-
spective states. If the tax be laid in this proportion,
it is withm the very words of the restriction. It is a
tax in proportion to the census or enumeration referred
to.
^ 1003. <^ But the argument is presented in another
fwm, in which its refutation is more difficult It b
urged against this construction, that it would produce
&e necessity of extending direct taxation to the district
and territories, which would not only be inconvenient,
but contrary to the understandmg and practice of the
whole ^vernment. If the power of imposing direct
taxes be co-ext^isive with the United States, then it is
contended, that the restrictive clause, if applicable to
the district and territories, requires, that the tax should
be extended to them ; since to omit them would be to
vidate the rule of proportion.
^ 1004 " We think, a satisfactory answer to this
argument may be drawn from a fair comparative view
of the different clauses of the constitution, which have
been recited.
^ 1005. ^^ That the general grant of power to lay and
collect taxes, is made in t^rms, which comprehend the
distiict and the territories, as well as the states, is, we
think, incontrovertible. The subsequent clauses are in-
tended to regulate the exercise of this power ; not to with-
draw frcHu it any portion of the community. The words.
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CH. XIT.] POWERS or OONGRKSS— *TAXS8. 467
in which those clauses are eicpressed, import this iiitenr
tion. In thus regulating its exercise, a rule is given in
the second section of the first article for its iq)plicaCion to
the respective states. That rule declares^ how direct
taxes upon the states shall be imposed. They shall be
apportioned upon the several states according to their
numbers. If, then, a durect tax be laid at all, it must
be laid on every state, conformably to the rule provided
in the constitution. Congress has clearly no power to
exempt any state from its due share of the burthen.
But this regulation is expressly confined to the states,
and creates no necessity for extending the tax to the
district or the territories. The words of the ninth section
do not in terms require, that the system of direct taxa*
tion, when resorted fe, shall be extended to the t^ni-
tones, as the words of the second section require, that
it slmll be extended to b& the states. They, thwefbre,
may, vnthout violence, be imderstood to give a rule^
when the territories shall be taxed, without imposing
the necessity of taxing them. It could scarcely escape
the members of the convention, that the expense of
executing the law in a territory might exceed the
amount of the tax. But be this as it may, the doubt
created by the words of the ninth section relates to
the obligation to apportion a direct tax on the territo-
ries, as well as the states, rather than to the power to
do so.
§ 1006. "If; then, the language of the coBStitution be
construed to comprehend the territories and District of
Columbia, as well as the states, that language confers
on congress the power of taxing the district and terri-
tories, as well as the states. If the general language of
the constitution should be confined to the states, still
the sixterath paragraph of the eighth section gives to
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408 CONSTITUTION 07 THE V. STATSS. [bOOK HI.
congress the power of exercknng 'exdusive legisl^tkm
in all cases whatsoever within this district.'
§ 1007, " On the extent of these terms, accordmg to
the common understanding of mankind, there can be
no difference of opinion ; but it is contended, that thej
must be limited by that great principle, which was
asserted in our. revolution, that representation is insep-
arable from taxation. The difference between requiring
a continent, with an immense population, to submit to be
taxed by a government, having no common interest with
it, separated from it by a vast ocean, restrained by no
principle of apportionment, and associated with it by no
common feelings ; and permitting the representatives of
the American peq>le, under the restrictions of our con-
stitution, to tax a part of the society, which is either in
a state of infancy advancing to manhood, looking for-
ward to complete, equa^ty, as soon as that state of man-
hood shall be attained, as is the case with the territo-
ries ; or which has voluntarily relinquished the right of
representation, and has adopted the whole body of con-
gress for its legitimate government, as is the case with
the district ; is too obvious not to present itself to the
minds of alL Although in theory it might be more con-
genial to the spirit of our institutions to admit a repre-
sentative from the district, it may be doubted, whether
in fact, its interests would be rendered thereby the
more secure ; and certainly the constitution does not
consider its want of a representative in congress as
exempting it from equal taxation.
^ 1008. " If it were true, that, according to the spirit
of our constitution, the power of taxation must be limit-
ed by the right of representation, whence is derived the
right to lay and cc^ect duties, imposts, and excises,
within ;this district? li the principles of liberty, and of
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CH. XIV.] POWSnS OF COHOREM TAXS8. 469
our ccmstitudon, forbid the rabmg of re?enue from those,
who are not represented, do not these principles forbid
the raising it by duties, imposts, and excises, as well
as by a direct taxi If the principles of our revolution
gire a rule applicable to this case, we cannot have for-
gotten, that neither the stamp act, nor the duty on tea,
were direct taxes. Tet it is admitted, that the consti-
tution not only allows, but enjobs the gotemment to
extend the ordinary revenue system to this district
§ 1009. " If it be said, that the principle of uniformity,
established in the constitution, secures the district from
oppression in the imposition of indirect taxes, it is not
less true, that the principle of apportionment, also
established in the ccmstitution, secures the district from
any oppressive exercise of the power to lay and cdlect
direct taxes.'*
^ 1010. The next clause in the constitution is: "No
^ tax or duty shall be laid on xirtides exported from
** any state. No preference shall be given by any reg-
**ulation of commerce, or revenue, to the ports of one
.** state over those of another; nor shall vessels bound
*• to, or from one state be obliged to enter, clear, or pay
** duties in another.'*
§ 1011. The obvious object of these provisions is, to
prevent any possibility of applymg the power to lay
taxes, or regulate commerce, injuriously to the inter-
ests of any one state, so as to favour or aid another.
If congress were allowed to lay a duty on exports
from any one state it might unreasonably injure, or
even destroy, the staple productions, or common arti-
cles of that state.* The inequality of such a tax would
be extreme. In s6me of the states, the whole of their
1 Rawie on the Conetitutioo, ch. 10, p. 115, 116.
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470 oovsTiTiprioir of the u. states, [book hi.
means result from agricultural exports. In others, a
great portion is derived fix)m other sources ; from ex-
ternal fisheries ; from freights ; and from the profits of
commerce in its largest extent. The burthen of such
a tax would, of course, be very unequally distributed.
The power is, therefore, whdly taken away to inter-
meddle with the subject of exports. On the other
hand, preferences might bd given to the ports of one
state by regulations, either of commerce or revenue,
which might confer on them local facilities or priv-
ileges in regard to commerce, or revenue. And such
preferences might be equally fatal, if individually
given under the milder form of requiring an entry,
clearance, or payment of duties in the the ports of any
state, other than the ports of the state, to or from which
the vessel was bound. The last clause, therefore, does
not prohibit congress fix)m requiring an entry or clear-
ance, or payment of duties at the custom-house on
importations m any port of a state, to or 6rom which
the vessel is bound ; but cuts oflf the right to require
such acts to be done in other states, to which the ves-
sel is not bound.^ In other words, it cuts off the pow-
er to require, that circuity of voyage, which, under
the British colonial system, was employed tcwinterrupt
the American comm^t^e before the revolution. No
American vessel could then trade with Europe, unless
thnH^h a circuitous voyage to and from a British port'
^ 1012. The first part of the clause was reported in
the first draft of the constitution. But it did not pass
1 Joum. of Coavention, 2d3, 294 ; Sergeant on Const Law, ch. 28, p.
346; UniUdSiates v. Brig mUiam, 2 HalPs Law Journal, d55, 2S9, 260 ;
Rawle on the Const ch. 10; p. 116 ; 1 Jefferson's Corresp. 104 to 106, 112.
a Reeves on Shipping, 28, 36, 47, 49, 52 to 105 ; Id. 491, 492, 493 ;
Borke*s Speech pn American Taxation, in 1774 ; 1 Pitk. Hist ch. 3,
p. 91 to 106.
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OH. XIV.] POWERS or OONQOlEtS — TAX£S. 471
without oppo^tion ; and several attempts were made to
amend it ; as by inserting after the word ^* duty '' the
words, ** for the purpose of revenue,^ and by inserting
at the end of it, <^ unless by consent of two thirds of
the legislature ; " both of which propositions were neg-
atived.^ It then passed by a vote of seven states against
four.' Subsequently, the remaining parts of the clause
were proposed by a report of a committee, and they
appear to have been adopted without objection.' Upon
the whole, the wisdom and soimd policy of this restric-
tion cannot admit of reasonable doubt ; not so much that
the powers of the general government were likely to be
abused, as that Uie constitutional prohibition would
allay jealousies, and ccmfirm confidence.^ The prohibi-
tion extends not only to exports, but to the exporter.
Congress can no more rightfully tax the one, than the
other.*
§ 1013. The next clause contains a prohibition on the
states for the like objects and purposes. ^ No state
^ shall, tmthout tke cansefU ofcaugress^ lay any knposts,
^ or duties on imports or exports, except what may be
^' absolutely necessary for executing its inspection laws ;
^ and the nett produce of all duties and imposts laid by
^^ any state on imports and exports shall be for the use
" of the treasury of the United States ; and all such
^ laws shall be subject to the revision and control ot
"congress. No state shall, without the consent of
"congress, lay any tonnage duty.*' In the first draft of
the constitution, the clause stood, " no state, without
" the consent," &c. " shall lay imposts or duties on im-
1 Joum. of Convention, 222, 275. » Id. 275, 276.
3 JouHL of Convention, 301, 318 ; Id. 377, 378.
4 1 Tuck. Black. Comm. App. 252, 253 ; Id. 2d4.
d Brwm y. Mctnfiandj 12 Wheat R. 449.
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472 COKSTITtTTIOir OF TflS U. STAINS. [bOOK HI.
ports." The clause was then amended by adding, ^or
exports," not however withqut opposition, six states
voting in the affirmative, and five in the negative ; " ^
and again by adding, ** nor with such consent, but for
the use of the treasury of the United States," by a vote
of nine states against two.' In the revised draft, the
dause was reported as thus amended. The clause
was then altered to its present shape by a vote of ten
states against one ; and the clause, which respects the
duty on tonnage, was then added by a vote of six
states against /four, one being divided.' So, that it
Beems, that a struggle for state powers was constandy
maintained with zeal and pertinacity throughout the
whole discussion. If there is wisdom and sound policy
in restraining the United States from exercising the
power of taxation unequally in the states, there is, at
least, equal wisdom and policy in restraining the states
themselves from the exercise of the same power inju-
riously to the interests of each other. A petty war-
fare of regulation is thus prevented, which would rouse
resentments, and create dissensions, to the ruin of the
harmony and amity of the states. Thd power to en-
force their respective laws is still retained, subject to
the revision and control of (Congress ; so, that sufficient
provision is made for the convenient arrangement of
their domestic and internal trade, whenever it is not
injurious to the general interests.^
§ 1014. Inspection laws are not, strictly speakmg,
regulations of commerce, though they may have a
1 Journ. of Convention, 227,303. a Id. 303,304.
» Journ. of Convention, 359, 380, 381. See 9 American Museom,
534 ; Id. 540.
4 The Federalist, No. 44 ; 1 Tuck. Black. Couim. App. 252, 3ia
See also 2 Elliot's Debates, 354 to 356 ; Journ. of Convention, 294,
295.
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CH. XIV.] POWERS OP CONGRESS TAXES. 473
remote and considerable influence on commerce. The
object of inspection laws is to improve the qual-
ity of articles produced by the labour of a country ; to
fit them for exportation, or for domestic use. These
laws act upon the subject, before it becomes an ar-
ticle of commerce, foreign or domestic, and prepare
it for the purpose. They form a portion of that
immense mass- of legislation, which embraces every
thing in the territory of a state not surrendered to the
general government. Inspection law^s> quarantine laws,
and health laws, as well as laws for regulating the in-
ternal commerce of a state, and others, which respect
roads, fences, &c. are component parts of state legis-
lation, resulting from the residuary powers of state
sovereignty. No direct power over these is given to
congress, and consequently they remain subject to
state legislation, though they may be controlled by con-
gress, when they interfere with their acknowledged
powers.^ Under the confederation, there was a provis-
ion, that "no state shall lay any imposts or duties,
which may interfere with any stipulations of treaties
entered into by the United States,*' &lc. &c. This
prohibition was notoriously (as has been already stat-
ed) disregarded by the states ; and in the exercise by
the states of their general authority to lay imposts and
. duties, it is equally notorious, that the most mischiev-
ous restraints, preferences, and inequalities existed ;
so, that very serious h-ritations and feuds were con-
stantly generated, which threatened the peace of the
Union, and indeed must have inevitably led to a disso-
lution of it.* The power to lay duties and imposts on
1 Gibbons V. Ogden, 9 Wheat R. 1, 203 to 206, 210, 235, 236,311 j
Broum v. Maryland, 12 Wheat R. 419, 438, 439, 440.
a The Federalist, No. 7,22.
VOL. II. 60
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474 CONSTITUTION OF THE U. STATES. [bOOK III.
imports and exports, and to lay a tonnage duty, are
doubdess properly considered a part of the taxing
power ; but they may also be applied, as a regulation
of commerce.*
§ 1015. Until a recent period, no diflSculty occurred
in regard to the prohibitions of this clause. Congress,
with a just liberality, gave full effect to the inspection
laws of the states, and required them to be observed by
the revenue officers of the United States.* In the
year 1821, the state of Maryland passed an act requir-
ing, that all importers of foreign articles or commodi-
ties, &LC. by bale or package, or of wine, rum, &c. &c,,
and other persons sellmg the same by wholesale, bale,
or package, hogshead, barrel, or tierce, should, before
they were authorized to sell, take out a license, for
which they were to pay Jijiy dollars, under certain
penalties. Upon this act a question arose, whether it
w^as, or not a violation of the constitution of the United
States, and especially of the prohibitory clause now
under consideration. Upon solemn argument, the
Supreme Court decided, that it was.' The judgment
of the Supreme Court, delivered on that occasion^ con-
tains a very full exposition of the whole subject ; and
although it is long, it seems difficult to abridge it with-
out marring the reasoning, or in some measure leaving
imperfect a most important constitutional inquiry. It
is, therefore, mserted at large.
^ 1016. " The cause depends entirely on the question,
whether the legislature of a state can constitutionally
require the importer of foreign articles to take out a
- 1 Gibbons v. Ogden, 9 Wheat R. 1, 199, 200, 201 ; Broum v. Mary-
land, 12 Wheat R. 446, 447.
a Act of 2d April, 1790, cb. 5 ; Act of 2d March, 1799, ch. 128, § 93.
' Broum v. Maryland, 12 Wheat R. 419; The Federalist, No. 278.
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CH. XIV.] POWEHS OF CONGRESS TAXES. 475
license froin the state, before he shall be permitted to
sell a bale or package so imported. It has been truly
said, that the presumption is in favour of every legis-
lative act, and that the whole burthen of proof lies on
those, who deny its constitutionality. The plaintiffs in
error take the burthen upon themselves, and insist, that
the act under consideration is repugnant to two provis-
ions in the constitution of the United States. (1.) To
that, which declares, that * no state shall, without the
consent of congress, lay any imposts or duties on im-
ports or exports, except what may be absolutely ne-
cessary for executing its inspection laws.' (2.) To that,
which declares, that congress shall have power ^ to reg-
ulate commerce with foreign nations, and among the
several states, and with the Indian tribes.'
^ 1017. " 1. The first inquiry is, into the extent of the
prohibition upon states, * to lay any imposts or duties
on imports or exports.' The counsel for the state of
Maryland would confine this prohibition to laws impos-
ing duties on the act of importation or exportation.
The counsel for the plaintiffs in error give them a much
wider scope. In performing the dehcate and impor-
tant duty of construing clauses in the constitution of
our country, which involve conflicting powers of the
government of the Union, and of the respective states,
it is proper to take a view of the literal meaning of the
words to be expounded, of their connexion with other
words, and of the general objects to be accomplished
by the prohibitory clause, or by the grant of power.
What, then, is the meaning of the words, * imposts or
duties on imports or exports 1 ' An impost or duty on
imports, is a custom or a tax levied on articles brought
into a country, and is most usually secured before the
importer is allowed to exercise his rights of ownership
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476 CONSTITUTION OF THE U. STATES. [bOOK III.
over them, because evasions of the law can be prevent-
ed more certamly by executing it, while the . articles
, are in its custody. It would not, however, be less an
impost or duty on the articles, if it were to be levied
on them after they were landed. The policy and con-
sequent practice of levymg or securing the duty before,
or on entering the port, does not limit the power to
that state of things, nor, consequently, the prohibition,
unless the true meanmg of the clause so confines it
What, then, are * imports ? ' The lexicons inform us,
they are * things imported.' If we appeal to usage for
the meaning of the word, we shall receive the same
answer. They are the articles themselves, which are
brought into the country. * A duty on imports,' then,
is not merely a duty on the act of importation, but is a
duty on the thing imported. It is not, taken in its lit-
eral sense, confined to a duty levied, while the article
is entering the country, but extends to a duty 4e vied
after it has entered the country. The succeeding
words of the sentence, which limit the prohibition, show
the extent, in which it was understood. The Umita-
tion is, * except what may be absolutely necessary for
executing its inspection laws.' Now, the inspection
laws, so far as they act upon articles for exporta-
tion, are generally executed on land, before the arti-
cle is put on board the vessel ; so far, as they act upon
importations, they are generally executed upon articles,
wUch are landed. The tax or duty of inspection, then,
is a tax, which is frequently, if not always, paid for ser-
vice performed on land, while the article is in the
bosom of the country. Yet this tax is an exception to
the prohibition on the states to lay duties on imports
or exports. The exception was made, because the tax
would otherwise have been within the prohibition. If
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CH. XIV.] POWERS OF CONGRESS TAXES. 477 '
it be a rule of interpretation, to which all assent, that
the exception of a particular thing from general words
proves, that in the opinion of the lawgiver, the thing
excepted would be within the general clause, had the
exception not been made, we know no reason, why
this general rule should not be as applicable to the con-
stitution, as to other instruments. If it be applicable,
then this exception in favour of duties for the support
of inspection laws, goes far in proving, that the framers
of the constitution classed taxes of a similar character
with those imposed for the purposes of inspection, with
duties on imports and exports, and supposed them to be
prohibited.
§ 1018. " If we quit this narrow view of the subject,
and, passing from the literal interpretation of the words,
look to the objects of the prohibition, we find no yea-
son for withdrawing the act under consideration from
its operation. From the vast inequality between the
diflFerent states of the confederacy, as to commercial
advantages, few subjects were viewed with deeper in-
terest, or excited more irritation, than the manner, in
which the several states exercised, or seemed disposed
to exercise, the power of laying duties on imports.
From motives, which were deemed sufficient by the
statesmen of that day, the general power of taxation,
indispensably necessary, as it was, and jealous, as the
states were, of any encroachment on it, was so far
abridged, as to forbid them to touch imports or exports,
with the single exception, which has been noticed.
Why are they restrained from imposing these duties ?
Plainly, because, in the general opinion, the interest of
all would be best promoted by placing that whole sub- ^
ject under the control of congress. Whether the pro-
hibition to * lay imposts, or duties on imports or ex-
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478 CONSTITUTION OF THE V. STATES. [bOOK Iir.
ports/ proceeded from an apprehension, that the power
might be so exercised, as to disturb that equality smiong
the states, which was generally advantageous, or that
harmony between them, which it was desirable to pre-
serve ; or to maintain unimpaired our commercial con-
nexions with foreign nations ; or to confer this source of
revenue on the government of the Union ; or, what-
ever other motive might have induced the prohibition ;
it is plain, that the object would be as completely de-
feated by a power to tax the article in the hands of
the importer, the instant it was landed, as by a power
to tax it, while entering the port There is no differ-
ence, in effect, between a power to prohibit the sale
of an article, and a power to prohibit its introduction
into the country. The one would be a necessary con-
sequence of the other. No goods would be imported,
if none could be sold. No object of any description
can be accomplished by laying a duty on importation,
which may not be accomplished with equal certainty
by laying a duty on the thing imported in the hands of
the importer. It is obvious, that the same power, which
imposes a light duty, can impose a very heavy one,
one which amounts to a prohibition. Questions of
power do not depend on the degree, to which it may
be exercised. If it may be exercised at all, it must be
exercised at the will of those, in whose hands it is
placed. If the tax may be levied in this form by a
state, it may be levied to an extent, which will defeat
the revenue by impost, so far, as it is drawn from im-
portations into the particular state.
§ 1019. We are told, that such a wild and irrational
abuse of power is not to be apprehended, and is not to
be taken into view, when discussing its existence. All
power may be abused ; and if the fear of its abuse is
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CH. XIY.] POWERS OF CONGRESS TAXES. 479
to constitute an argument against its existence, it might
be urged against the existence of that, which is univer-
sally acknowledged, and which is mdispensable to the
general safety. The states will never be so mad, as to
destroy their own commerce, or even to lessen it
We do not dissent from these general propositions.
We do not suppose any state would act so unwisely.
But we do not place the question on that ground.
These arguments apply with precisely the same force
against the whole prohibition. It might, with the same
reason be said, that no state would be so blind to its
own interests, as to lay duties on importation, whict
would either prohibit, or diminish its trade. Yet the
framers of our constitution have thought this a power,
which no state ought to exercise. Conceding, to the
full extent, which is required, that every state would, in
its legislation on this subject, provide judiciously for its
own interests, it cannot be conceded, that each would
respect the interests of others. A duty on imports is
a tax on the article, which is paid by the consumer.
The great importing states would thus levy a tax on
the non-importing states, which would not be less a tax,
because their interest would afford ample security
against its ever being so heavy, as to expel commerce
from their ports. This would necessarily produce
countervailing measures on the part of those states,
whose situation was less favourable to importation.
For this, among other reasons, the whole power of lay-
ing duties on imports was, with a single and slight ex-
ception, taken from the states. When we are inquir-
ing, whether a particular act is within this prohibition,
the question is not, whether the state may so legislate,
as to hurt itself, but whether the act is within the words
and mischief of the prohibitory clause. It has already
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480 CONSTITUTION OF THE U. STATES. [BOOK III.
been shown, that a tax on the article in the hands of
the importer is within its words ; and we think it too
clear for controversy, that the same tax is within its
mischief. We think it unquestionable, that such a tax
has precisely the same tendency to enhance the price
of the article, as if imposed upon it, while entering the
port.
^ 1020. " The counsel for the state of Maryland m-
sist with great reason, that if the words of the pro-
hibition be taken in their utmost latitude, they will
abridge the power of taxation, which all admit to be
essential to the states, to an extent, which has never
yet been suspected ; and will deprive them of resources,
which are necessary to supply revenue, and which
they have heretofore been admitted to possess. These
words must, therefore, be construed with some limita-
tion ; and, if this be adniitted, they insist, that enter-
ing the country is the point of time, when the prohibi-
tion ceases, and the power of the state to tax com-
mences. It may be conceded, that the words of the
prohibition ought not to.be pressed to their utmost ex-
tent ; that in our complex system the object of the
powers conferred on the government of the Union, and
the nature of the often conflicting powers, which re-
main in the states, must always be taken into view, and
may aid in expounding the words of any particular
clause. But while we admit, that sound principles of
construction ought to restrain all courts from carrying
the words of the prohibition beyond the object, which the
^constitution is intended to secure ; that there must be
a point of time, when the prohibition ceases, and the
power of the state to tax commences ; we cannot ad-
mit, that this point of time is the instant, that the articles
enter the country. It is, we think, obvious, that this
construction would defeat the prohibition.
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CH. XIV.] POWERS OF CONGRESS TAXES. 481
^1021. "The constitutional prohibition on the states
to lay a duty on imports, a prohibition, which a vast
majority of them must feel an interest in preserving,
may certainly come in conflict with their acknowledged
power to tax persons and property within their terri-
tory. The power, and the restriction on it, though
quite distinguishable, when they do not approach each
other, may yet, Uke the intervening colors between
white and black, approach so nearly, as to perplex the
understanding, as colors perplex the vision in marking
the distinction between them. Yet the distinction
exists, and must be marked, as the cases arise. Till
they do arise, it might be premature to state any ride,
as being universal in its application. It is sufficient for
the present, to say, generally, that when the importer
has so acted upon the thing imported, that it has be-
come incorporated and mixed up with the mass of
property in the country, it has, perhaps, lost its distinc-
tive character, as an import, and has become subject
to the taxing power of the state. But, while remaining
the property of the importer, in his warehouse, in the
original form or package, in which it was imported, a
tax upon it is too plainly a duty on imports to escape
the prohibition in the constitution.
^ 1022. "The counsel for the plaintiffs in error con-
tend, that the importer purchases, by payment of the
duty to the United States, a right to dispose of his
merchandise, as well as to bring it into the country ;
and certainly the argument is supported by strong rea-
son, as well as by the practice^f nations, including our
own. The object of importation is sale ; it constitutes
the motive for paying the duties ; and if •the United
States possess the power of conferring the right to
seU, as the consideration, for which the duty is paid,
VOL. II. 61
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482 CONSTITUTIOl^ OF THE U. STATES. [bOOK UI.
every principle of fair dealing requires, that they should
be understood to confer it. The practice of the most
commercial nations conforms to this idea. Duties, ac-
cording to that practice, are charged on those articles
oaly^ which are intended for sale or consumption in the
country. Thus, sea stores, goods imported and re-
exported in the same vessel, goods landed and carried
over land for the purpose of being re-exported from
some other port, goods forced in by stress of weath-
er, and landed, but not for sale, are exempted from
the payment of duties. The whole course of legisla-
tion on the subject shows, that, in the opinion of the
legislature, the right to sell is connected with the pay-
ment of duties.
5)^ 1023. *^ The counsel for the defendant in error have
endeavoured to illustrate their proposition, that the
constitutional prohibition ceases the instant the goods
enter the country, by an array of the consequences,
which they suppose must follow the denial of it. If
the importer acquires the right to sell by the payment
of duties, he may, they say, exert that right, when,
where, and as he pleases ; and the state cannot regulate
it. He may sell by retail, at auction, or as an itinerant
pedlar. He may introduce articles, as gun-powder,
which endanger a city, into the midst of its population ;
he may introduce articles, which endanger the public
health, and the power of self-preservation is dem'ed.
An importer may bring in goods, as plate, for his own
use, and thus retain much valuable property exempt
from taxation. ^
^ 1024 "These objections to the principle, if well
jbunded, would certamly be entitled to serious considera-
tion. But, we think, they will be found, on examination,
uot to belong necessarily to the principle, and* conse-
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OH. XIV.] POWERS OF CONGRESS — TAXES. 483
quently,not to prove, that it may not be resorted to with
safety, as a criterion, by which to measure the extent
of the prohibition. This indictment is against the im-
porter for selling a package of dry goods in the form,
in which it was imported, without a license. This
state of things is changed, if he sells them, or otherwise
mixes them with the general property of the state, by
breaking up his packages, and travelling with them, as
an itinerant pedlar. In the first case, the tax intercepts
the import, as an import, in its way to become incor-
porated with the general mass of property, and denies
it the privilege of becoming so incorporated, until it
shall have contributed to the revenue of the state. It
denies to the importer the right of using the privilege,
which he has purchased from the United States, until
he shall have also purchased it from the state. In the
last case, the tax finds the article already incorporated
with the mass of property by the act of the importer.
He has used the privilege he had purchased, and has
himself mixed them up with the common mass, and the
law may treat them, as it finds them. The same obser*
vations apply to plate, or other furniture used by the
importer. So, if he sells by auction. Auctioneers are
persons licensed by the state, and if the importer
chooses to employ them, he can as littie object to pay-
ing for this service, as for any other, for which he may
apply to an officer of the state. The right of sale may
very well be annexed to importation, without annexing
to it, also, the privilege of using the officers licensed by
the state to make sales in a peculiar way. The power
to direct the removal of gun-powder is a branch of the
police power, which unquestionably remains, and ought
to remain with the states. If the possessor stores it
himself out of town, the removal cannot be a duty <m
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484 CONSTITUTION OF THE V. STATES. [BOOK lU.
imports, because it contributes nothing to the revenue.
If he prefers placing it in a public magazine, it is be-
cause he stores it there, in his own opinion, more
advantageously than elsewhere. We are not sure, that
this may jaot he classed among inspection laws. The
removal or destruction of infectious or unsound articles
is, undoubtedly, an exercise of that power, and forms
an express exception to the prohibition we are consid-
ering. Indeed, the laws of the United States expressly
sanction the health laws of a state.
§ 1025. "The principle, then, for which the plam-
tiffs in error contend, that the importer acquires a right,
not only to bring the articles into the country, but to
mix them with the common mass of property, does not
interfere with the necessary power of taxation, which is
acknowledged to reside in the states, to that dangerous
extent, which the counsel for the defendants in error seen^
to apprehend. It carries the prohibition in the consti-
tution no farther, than to prevent the states from doing
that, which it was the great object of the constitution to
prevent
§ 1026. "But if it should be proved, that a duty on
the article itself would be repugnant to the constitution,
it is still argued, that this is not a tax upon the article, but
on the person. The state, it is said, may tax occupations,
and this is nothing more. It is impossible to conceal from
ourselves,that this is varying the form, without varymg
the substance. It is treating a prohibition, which is gen-
eral, as if it were confined to a particular mode of doing
the f(H*bidden thmg. All must perceive, that a tax on
the sale of an article, imported only for sale, is a tax
on the article itselfl It is true, the state may tax occu-
pations generally ; but this tax must be paid by those,
Inrho employ the individual, or is a tax on his business.
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CH. XIV.] POWERS OF COI^ORESS — TAXES. 486
The lawyer, the physician, or the mechanic, must either
charge more on the article, in which he deals, or the
thing itself is taxed through his person. This the state
has a right to do, because no constitutional prohibition
extends to it. So, a tax on the occupation of an im-
porter is, in like manner, a tax on importation. It must
add to the price of the article, and be paid by the con-
sumer, or by the importer himself, in like manner, as a
direct duty on the article itself would be made. This
the state has not a right to do, because it is prohibited
by the constitution.
^ 1027. " In support of the argument, that the pro-
hibition ceases the instant the goods are brought into
the country, a comparison has been drawn between the
opposite words, export and import. As, to export, it is
said, means only to carry gdods out of the country ; so,
to impoit, means only to bring them into it But, sup-
pose we extend this comparison to the two prohibitions.
The states are forbidden to lay a duty on exports, and
the United States are forbidden to lay a tax or duty on
articles exported from any state. There is some diver-
sity in language, but none is perceivable in the act,
which is prohibited. The United States have the same
right to tax occupations, which is possessed by the
states. Now, suppose the United States should re-
quire every exporter to take out a hcense, for which he
should pay such tax, as congress might think proper to
impose ; would the government be permitted to shield
itself from the just censure, to which this attempt to
evade the prohibitions of the constitution would expose
it, by saying, that this was a tax on the person, not on
the article, and that the legislature had a right to tax
occupations 1 Or, suppose revenue cutters were to be
stationed off the coast for the purpose of levying a duty
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486 CONSTITUTION OP THE U. STATES. [bOOK III.
on all merchandise found in vessels, which were leaving
the United States for foreign countries ; would it be
received, as an excuse for this outrage, were the gov-
ernment to say, that exportation meant no more than
carrying goods out of the country, and as the prohibi-
tion to lay a tax on imports, or things imported, ceased
the instant they were brought into the country, so the
prohibition to tax articles exported ceased, when they
were carried out of the country 1
§ 1028. "We think, then, that the act, under which
the plaintiffs in error were mdicted, is repugnant to that
article of the constitution, which declares, that * no state
shall lay any impost or duties on imports or ex-
ports.' " *
^ 1029. As the power of taxation exists in the states
concurrently with the United States, subject only to the
restrictions imposed by the constitution, several ques-
tions have from time to time arisen in regard to the na-
ture and extent of the state power of taxation.
§ 1030. In the year 1818, the state of Maryland
passed an act, laying a tax on all banks, and branches
thereof, not chartered by the legislature of .that state;
and a question was made, whether the state had a right
under that act, to lay a tax on the Branch Bank of the
United States in that state. This gave rise to a most
animated discussion in the Supreme Court of the Uni-
ted States ; where it was finally decided, that the tax
was, as to the Bank of the United States, unconstitution-
al* The reasoning of the Supreme Court, on this sub-
ject, was as follows.
1 The opinion alao proceeded to declare, that the act was a violation
of the exclusive power of congress to reg^ate commerce. But the ex-
amination of this part of the qaestion properly belongs to another bead.
9 M^CuUdch V. SUtU o/Matyland^A Whe^L R. 316; 1 Kent's Comm.
Lect 19, p. 398 5 Id. 401.
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CH. XIV.] POWERS OF CONGRESS TAXES. 487
§ 1031. "Whether the state of Maryland may, with-
out violatmg the coDStitution, tax that branch 1 That
the power of taxation is one of vital importance;
that it is retained by the states ; that it is not abridg-
ed by the grant of a similar power to the government
of the Union ; that it is to be concurrendy exercised
by the two governments: are truths, which have
never been denied. But, such is the paramount char-
acter of the constitution, that its capacity to with-
draw any subject frojn the action of even this power
is admitted. The states are expressly forbidden to lay^
any duties on imports or exports, except what may be
absolutely necessary for executing their inspection laws.
If the obligation of this prohibition must be conceded;
if it may restrain a state from the exercise of its taxmg
power on imports and exports ; the same paramount
character would seem to restrain, as it certainly may
restraun, a state from such other exercise of this power,
as is in its nature incompatible with, and repugnant to,
the constitutional laws of the Union. A law, absolutely
repugnant to another, as entirely repeals that other, as if
express terms of repeal were used.
^ 1032. "On this ground the counsel for the bank
place its claim to be exempted from the power of a
state to tax its operations. There is no express pro-
vision for the case; but the claim has been sustained on
a principle, which so entirely pervades the constitution ;
is so intermixed with the materials, which compose it ;
so interwoven with its web, so blended with its texture,
as to be incapable of being separated from it without
rending it into shreds. This great principle is, that the
constitution and the laws made in pursuance thereof are
supreme ; that they control the constitution and laws of
the respective states, and cannot be controlled by them.
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488 CONSTITUTION OF THJG U. STATES. [BOOK III.
From this, which may be almost termed an axiom,
Other propositions are deduced, as corollaries, on the
truth or error of which, and on then- application to this
case, the cause has been supposed to depend. These
are, 1st that a power to create implies a power to pre-
serve. 2nd. That a power to destroy, if wielded by a
different hand, is hostile to, and incompatible with the
powers to create and to preserve. 3d. That where this
repugnancy exists, that authority, which is supreme,
must control, not yield to that over, which it is supreme.
These propositions, as abstract truths, would, per-
haps, never be controverted. Their application to
this case, however, has been denied; and, both in
maintaining the afRrmative and the negative, a splendor
of eloquence, and strength of argument, seldom, if
ever, surpassed, have been displayed.
§ 1033. "The power of congress to create, and of
course to continue, the bank, was the subject of the
preceding part of this opinion ; and is no longer to be
considered as questionable. That the power of taxing
it by the states may be exercised so, as to destroy it, is
too obvious to be denied. But taxation is said to be an
absolute power, which acknowledges no other limits, than
those expressly prescribed in the constitution; and like
sovereign power of every other description, is trusted to
the discretion of those, who use it. But the very terms
of this argument admit, that the sovereignty of the
state in the article of taxation itself, is subordinate to,
and-maybe controlled by, the constitution of the United
States. How far it has been controlled by that instru-
ment, must be a question of construction. In making
this construction, no principle, not declared, can be ad-
missible, which would defeat the legitimate operations
of a supreme government It is of the very essence of
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€H. XIV.] POWERS OF CONaRSSS — TAXES. '- 489
supremacy to remove all obstacles to its action within
its own sphere, and so to modify every power vested
in subordinate governments, as to exempt its own opera-
tions from their own influence. This effect need not
be stated in terms. It is so involved m the declaration
of supremacy, so necessarily implied in it, that the ex-
pression of it could not make it more certain. We
must, therefore, keep it in view, while construing the
constitution.
§ 1034. " The argument, on the part of the state of
Maryland, is, not that the states may directly resist a
law of congress, but that they may exercise their ac-
knowledged powers upon it, and that the constitution
leaves them this right in the confidence, that they will
not abuse it Before we proceed to examme this argu-
ment, and to subject it to the test of the constitution,
we must be permitted to bestow a few considerations
on the nature and extent of this original right of taxa-
tion, which is acknowledged to remain with the states.
It is admitted, that the power of taxing the people and
then* property is essential to the very existence of gov-
ernment, and may be legitimately exercised on the ob-
jects, to which it is applicable, to the utmost extent, to
which the government may choose to carry it The
only security against the abuse of this power is found
in the structure of the government itself. In imposing
a tax the legblature acts upon its constituents. This
is in general a sufficient security against erroneous and
oppressive taxation. The people of a state, therefore,
give to their government a right of taxing themselves and
their property; and as the exigencies of government
cannot beUmited, they prescribe no limits to the exercise
of this right, resting confidendy on the interest of the
legislator, and on the influence of the constituents over
VOL. II. 62
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490 CONSTITUTIOH OF THB U. STATES. [M)0K IO.
their representative, to guard them against its abuse.
But the means employed by the government of the
Union have no such security ; nor is- the right of a state
to tax them sustained by the same theory. Those
means are not given by the people of a particular state;
not given by the constituents of the legislature, which
claim the right to tax them ; but by the people of aU the
states. They are given by all, for the benefit . of all;
and upon theory, should be subjected to that govern-
ment only, which belongs to all.
^ 1035. "It may be objected to this definition, that
the power of taxation is not confined to the people and
property of a state. It may be exercised upon every
object brought within its jurisdiction. This is true.
But to what source do we trace this right 1 It is ob-
vious, that it is an incident of sovereignty, and is co-ex-
tensive with that, to which it is an incident AU sub-
jects, over which the sovereign power of a state ex-
tends, are objects of taxation ; but those, over which it
does not extend, are, upon the soundest principles,
exempt from taxatbn. This proposition may almost be
pronounced self-evident. The sovereignty of a state
extends to every thing, which exists by its own authority,
or is introduced by its permission ; but does it extend to
those means, which are employed by congress to cany
into execution powers conferred on that body by the
people of the United States 1 We think it demonstrable,
that it does not. Those powers are not given by the peo-
ple of a single state. They are given by the people of
the United States to a government, whose laws, made
in pursuance of the constitution, are declared to be'
supreme. Consequently, the people of a single state
cannot confer a .sovereignty, which will extend over
tbem.
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CH. XIT.] POWSRS OF CX>]rOR£at — TAXB9* 491
§ 1 036. ^^ If we measure the power of taxatkm redd-
ing in a state, by the extent of sovereignty, which the
people of a single state possess, and can confer on its
government, we have an intelligible standard, appfica-
ble to every case, to which the power may be applied.
We have a principle, which leaves the power of taxmg
the people and property of a state unimpaired ; which
leaves to a state the command of all its resources ; and
which places beyond its reach all those powers, which
are conferred by the people of the United States on
the government of the Unbn, and all those mean^
which are given for the purpose of carrying those
powers into execution. We have a principle^ which is
safe for the states, and safe for the Union* We are re*
lieved, as we ought to be, from clashing sovereignty ;
from interfering powers ; from a repugnancy between
si right in one government to pull down, what there is
an acknowledged right in another to build up ; from
the incompatibility of a right in one government to des-
troy, what there is a ri j^ht in another to preserve. • We are
not driven to the perplexing inquiry, so unfit for the judi-
dal dep^trtment, what degree of taxation is the legiti-
mate use, and what degree may amount to the abuse
of the power. The attempt to use it on the means
empk^ed by the government of the Union, in pursu-
ance of the constitution, is itself an abuse, because it is
the usurpation of a power, which the people of a single
state cannot give.
§ 1037. "We find, then, on just theory, a total failure
of this original right to tax the means employed by the
government of the Union, for the execution of its pow-
ers. The right never existed ; and the question, wheth-
& it has been surrendered, cannot arise.
§ 1096. ^But viraiving diis theory for the present, let
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492 coNSTiTUTioir or the u. states, [book hi.
us resume the inquiry, whether this power can be ex-
ercised by the respective states, consistently with a fair
construction of the constitution 1 That the power to
tax involves the power to destroy ; that the power to
destroy may defeat, and render useless the power to
create; that there is a plain repugnance in conferring on
one government a power to control the constitutional
measures of another, which other, with respect to those
very measures,is declared to be supreme over that, which
exerts the control, are propositions not to be denied
But all inconsistencies are to be reconciled by the magic
of the word confidence. Taxation, it is said, doea not
necessarily and unavoidably destroy. To carry it to
the excess of destruction would be an abuse, to pre-
sume which, would banish that confidence, which is
essential to all government But is this a case of confi-
dence? Would the people of any one state trust those
of another with a power to control the most insignificant
operations of their state government? We know they
would not. Why, then, should we suppose, that the
people of any one state would be willing to trust those
of another with a power to control the operations of a
government, to which they have confided their most im-
portant and most valuable interests ? In the legislature of
the Union alone are all represented. The legislature of
the Union alone, therefore, can be trusted by the peo-
ple with the power of controlling measures, which con-
cern all, in the confidence, that it will not be abused.
This, then, is not a case of confidence, and we must
consider it, as it really is.
§ 1 039. "If we apply the principle, for which the state
of Maryland contends, to the constitution generally, we
shall fiind it capable of changing totally the character of
that instrum^it ,We shall find it csqpable of arresting
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OH. XIV.] P0WXR8 OF OONGRJESS — TAXES. 493
all the measures of the goyemment, and of prostrating
it, at the foot of the states. The American people
have declared their constitution, and the laws made in
pursuance thereof, to be supreme ; but this principle
would transfer the supremacy, m fact, to the states.
If the states may tax one instrument, employed
by the government in the execution of its powers,
they may tax any, and every other instrument.
They may tax the mail ; they may tax the mint ; they
may tax patent rights ; they may tax the papers of the
custom-house; they may tax judicial process; they
may tax all the means employed by the government,
to an excess, which would defeat all the ends of gov-
ernment. This was not intended by the American
people. They did not design to msdke their govern-
ment dependent on the states. Gendemen wsay, they do
not claim the right to extend state taxation to these ob-
jects. They limit their pretensions to property. But
on what principle is this distinction made 1 Those, who
make it, have furnished no reason for it; and the principle,
for which they contend, denies it. They contend, that
the power of taxation has no other limit, than is found in
the 10th section of the 1st article of the constitution ;
that, with respect to every thing else, the power of the
states is supreme, and admits of no control. If this be
true, the distinction between property and other subjects,
to which the power of taxation is applicable, is merely
arbitrary, and can never be sustained. This is not all.
If the controlling power of the states be established ; if
their supremacy, as to taxation, be acknowledged; what
is to restrain their exercising this control, in any shape
they may please to give it? Their sovereignty is not
confined to taxation. This is not the only mode, in
which it might be displayed. The question is, in truth.
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494. COHSTITUTXON OF THE U. BTATSS. {BOOK UU
a question of supremacy; and if the right of the states
to tax the means employed by the gekieral government
be conceded, the declaration, that the constitution, and
the laws made in pursuance thereof, shall be the su-
preme law of the land, is empty and unmeaning decla-
mation."
^ 1040. ^'It has also been insisted, that, as tl^ porwer
of taxation in the general and state governments, is ac-
knowledged to be concurrent, every argument, which
would sustain the right of the general government to
tax banks, chartered by the states, will equally sustam
the right of the states to tax banks, chartered by the gen-
eral government. But, the two cases are not on the
same reason. The people of all the states have created
the general government, and have conferred upon it the
general power of taxation. The people of all the
states, and the states themselves, are represented in
congress, and, by then* representatives, exercise thb
power. When they tax the chartered institutbns of
the states, they tax then* constituents; and these taxes
must be uniform. But, when a state taxes the (dera-
tions of the government of the United States, it acts
upon institutions created, not by their own constituents,
but by people, over whom they claim no control. It
acts upon the measures of a govemmejit, created by
others, as well as themselves, for the benefit of others
in common with themselves. The difference is, that,
which always exists, and always must exist, between
the action of th^ whole on a part, and the action of a
part on the whole ; between the laws of a government
declared to be supreme, and those of a government,
which, when in opposition to those laws, is not su-
preme. But if the full application of this argument
could be admitted, it might bring into queation dto
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€H. XIT.] P0WSR8 OT C0270RE88 — TAXSS. 496
right of congress to tax the state banks, and could not
prove the right of the states to tax the bank of the
United States.
: § 1041. "The court has bestowed on this subject its
most deliberate consideration. The result is a convic-
tion, that the states have no power, by taxation or
otherwise, to retard, impede, burden, or in any manner
control, the operations of the constitutional laws enact-
ed by congress, to carry into execution the powers
vested in the general government. This is, we think,
the unavoidable consequence of that supremacy, which
the constitution has declared. Wc are unanimously of
opinion, that the law passed by the legislature of Mary-
land, imposing a tax on the bank of the United States,
is unconstitutional and void/'*
^ 1042. In another case the question was raised,
whether a state had a constitutional authority to tax
stock issued for loans to the United States ; and it was
held by the Supreme Court, that a state had not*
The reasoning of the court was as follows. "Is the stock,
issued for loans made to the government of the Unit-
ed States, liable to be taxed by states and corpora-
tions? Congress has power, *to borrow money on
the credit of the United States.' The stock it issues
is the evidence of a debt created by the exercise of this
power. The tax in question is a tax upon the contract,
subsisting between the government and the individual.
It bears directly upon that contract, while subsisting,
^ The doctrine was again re-examined by the Supreme Court in a
later case, and deliberately re-affirmed ; Osbam v. Bank qf the UniUd
Stales, 9 Wheat. R. 73d, 859 to 868 ; 1 Kent's Comm. Lect. 1% p. 235
to239.
9 Weston y. The City Cwnca qf Charteston, 2 Peters's R. 449.
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496 CONSTITUTION OF THE U. STATES. [bOOK III.
and in full force. The power operates upon the con-
tract, the. instant it is framed, and must imply a right to
affect that contract. If the states and corporations
throughout the Union, possess the power to tax a con-
tract for the loan of money, what shall arrest this prin-
ciple in its application to every other contract ? What
measure can government adopt, which will not be ex-
posed to its influence?
§ 1043. "But it is unnecessary to pursue this princi-
ple, through its diversified application to all the con-
tracts, and to the various operations of government.
No one can be selected, which is of more vital interest
to the cott^munity, than this of borrowing money on the
credit of the United States. No power has been con-
ferred by the American people on their government, the
free and unburthened exercise of which more deeply
aflects every member of our republic. In war, when
the honour, the safety, the independence of the nation
are to be defended, when all its resources are to be
strained to the utmost, credit must be brought in aid of
taxation, and the abundant revenue of peace and pros-
perity must be anticipated to supply the exigencies,
the urgent demands of the moment The people, for
objects the most important, which can occur in the
progress of nations, have empowered their government
to make these anticipations, * to borrow money on the
credit of the United States.' Can any thing be more
dangerous, or more injurious, than the admission of a
principle, which authorizes every state, and every cor-
poration in the Union, which possesses the right of taxa-
tion, to burthen the exercise of this power at their dis-
cretion ?
§ 1044. "If the right to impose the tax exists, it is a
right, which in its nature acknowledges no Umits. It
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CH. XIT.] POWERS OF CONGRESS TAXES. 497
may be carried to any extent within the jurisdiction of
the state or corporation, which imposes it, \<^hich the
will of each state and corporation may prescribe. A
power, which is given by the whole American people
for their common good ; which is to be exercised at the
most critical periods for the most important purposes ;
on the free exercise of which the interests certainly,
perhaps the liberty, of the whole may depend ; may be
burthened, impeded, if not arrested, by any of the or-
ganized parts of the confederacy.
§ 1044. "In a society, formed like ours, with one su-
preme government for national purposes, and nume-
rous state governments for other purposes ; in many
respects independent, and in the uncontrolled exercise
of many important powers, occasional interferences
ought not to surprise us. The power of taxation is
one of the most essential to a state, and one of the most
extensive in its operation. The attempt to maintain a
rule, which shall limit its exercise, is undoubtedly among
the most delicate and difficult duties, which can de-
volve on those, whose province it is to expound the
supreme law of the land in its application to the cases
of individuals. This duty has more than once devolved
on this Court. In the performance of it we have con-
sidered it, as a necessary consequence, from the su-
premacy of the government of the whole, that its ac-
tion m the exercise of its legitimate powers should be
free and unembarrassed by any conflicting powers in
the possession of its parts ; that the powers of a state
cannot, rightfully, be so exercised, as to impede and
obstruct the free course of those measures, which the
government of the United States, may rightfully adopt
§ 1046. "This subject was brought before the Court
VOL. II. 63
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498 COWSTITUTION OF THE U. STATES. [bOOK III.
in the case of MCuUoch v. The State of Marylandj^
when it was thoroughly argued, and deliberately con-
sidered. The question decided in that case bears a
near resemblance to that, which is involved in this. It
was discussed at the bar in all its relations, and ex-
amined by the Court with its utmost attention. We
will not repeat the reasoning, which conducted us to
the conclusion thus formed ; but that conclusion was,
that * all subjects, over which the sovereign power of a
state extends, are objects of taxation ; but those, over
which it does not extend, are, upon the soundest prin-
ciples, exempt from taxation.' *The sovereignty of a
state extends to every thing, which exists by its own
authority, or is introduced by its permission ; ' but not
* to those means, which are employed by congress to
carry into execution powers conferred on that body
by the people of the United States.' * The attempt
to use' the pdwer of taxation ^ on the means employ-
ed by the government of the Union, in pursuance of
the constitution, is itself an abuse ; because it is the
usurpation of a power, which the people of a single
state cannot give.' * The states have no power by taxa-
tion, or otherwise, to retard, impede, burthen, or in any
manner control the operation of the constitutional laws,
enacted by congress to carry into execution the pow-
ers vested in the generel government.' We retam
the opinions, which were then expressed. A con-
tract made by the government in the exercise of
its power, to Sorrow money on the credit of the
United States, is undoubtedly independent of the
will of any state, in which the individual, who lends,
may reside; and is undoubtedly an operation essential
1 4 Wheaton, 310.
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CH. XIV*] POWERS OF CONGRESS — TAXES. 499 »
to the important objects, for which the government
was created. It ought, therefore, on the principles
settled in the case o{ MCuUoch v. The State of Mary*
land to be exempt from state taxation, and conse-
quently from being taxed by corporations, deriving
their power from states.
§ 1046. "It is admitted, that the- power of the gov-
ernment to borrow money cannot be directly opposed ;
and that any law, directly obstructing its operaticms,
would be void. But a distinction is taken between
direct. opposition, and those measures, which may con-
sequentially affect it ; that is, a law proliibiting loans to
the United States, would be void ; but a tax on them
to any amount is allowable. It is, we thmk, impossible
not to perceive the intimate connexion, which exists
between these two modes of acting on the subject
It is not the want of original power in an indepen-
dent sovereign state, to prohibit loans to a foreign
government, which restrains the legislature from
du-ect opposition to those made by the United States.
The restraint is imposed by our constitution. The
American people have conferred the power of borrow-
ing money on their government ; and by making that
government supreme, have shielded its action, in the
exercise of this power, from the action of the local
governments. The grant of the power is incompatible
with a restraining or controlling power ; and the decla-
ration of supremacy is a declaration; that no such res-
training or controlling power shall be exercised. The
right to tax the contract to any extent, when made,
must operate upon the power to borrow, before it
is exercised, and have a sensible influence on the
contract The extent of this influence depends on
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500 c6h8titution of the u. states, [book hi.
the will of a distinct government. To any extent, how-
ever inconsiderable, it is a burthen on the operations of
government. It may be carried to an extent, which
will arrest them entirely.
^ 1047. "It is admitted by the counsel for the defend-
ants, that the power to tax stock must affect the terms,
on which loans will be made. But this objection, it is
said, has no more weight, when urged against the ap-
plication of an acknowledged power to government
stock, than if urged against its appUcation to lands sold
by the United States. The distmction is, we think, ap-
parent When lands are sold, no connexion remains be-
tween the purchaser and the government. The lands
purchased become a part of the mass of property in the
country, with no implied exemption from common bur-
thens. All lands are derived from the general or par-
ticular government, and all lands are subject to taxa-
tion. Lands sold are in the condition of money bor-
rowed and repaid. Its liability to taxation, in any form
it may then assume, is not questioned. The connex-
ion between the borrower and the lender is dissolved
It is no burthen on loans ; it is no impediment to the
power of borrowing, that the money, when repaid, loses
its exemption from taxation. But a tax upon debts due
from the government stands, we think, on very different
principles from a tax on lands, which the government
has sold. The Federalist has been quoted in the
argument, and an* eloquent and well merited eulogy
has been bestowed on the great statesman, who is sup-
posed to be the author of the number, from which the
quotation was made. This high authority was also re-
lied upon in the case oiMCuUoch v. The State of Ma-
rylandf and was considered by the Court. Without
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CH. XIV.] POWERS OF CONOR£88 — TAXES. 501
repeating, what was then said, we refer to it, as exhibit-
ing our view of the sentiments expressed on this sub-
ject by the authors of that work.
^ 1048. "It has been supposed, that a tax on stock
comes within the exceptions stated in the case of
MCulloch V. The State of Maryland. We do not thmk
so. The bank of the United States, is an instrument,
essential to the fiscal operations of the government ; and
the power, which might be exercised to its destruction,
was denied. But property, acquired by that corpora-
tion in a state, was supposed to be placed in the same
condition with property acquired by an individual.
The tax on government stock is thought by this
Court to be a tax on the contract, a tax on the
power to borrow money on the credit of the United
States, and consequently to be repugnant to the con-
stitution."
^ 1049. It is observable, that these decisions turn
upon the point, that no state can have authority to tax
an instrument of the United States, or thereby to di-
minish the means of the United States, used in the
exercise of powers confided to it. But there is no pro-
hibition upon any state to tax any bank or other corpora-
tion created by its own authority, unless it has restrain-
ed itself, by the charter of incorporation, from the power
of taxation.^ This subject, however, will more properly
fall under notice in some future discussions. It may be
added, that congress may, without doubt, tax state
banks ; for it is clearly withm the taxing power confid-
ed to the general government. When congress tax
the chartered institutions of the states, they tax their
1 Providence Bank v. BiUingSy 4 Petere'a R. 514.
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502 CONSTITUTION OF THE U. STATES. [BOOK III.
own constituents ; and such taxes must be uniform.*
But when a state taxes an institution created by con-
gress, it taxes an instrument of a superior and indepen-
dent sovereignty, not represented in the state legisla-
ture.
1 APCSdhch V. Maryland, 4 Wheat R. 316, 435.
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CH. XT.] POWERS OF CONGRESS LOANS. 503
CHAPTER XV.
POWER TO BORROW MONEY AND REGULATE COM-
MERCE*
^ 1050. Having finished this examination of the
power of taxation, and of the accompanying restrictions
and prohibitions, the other powers of congress will be
now examined in the order, in which they stand in the
eighth section.
§ 1051. The next, is the power of congress "to bor-
" row money on the credit of the United States.'* This
power seems indispensable to the sovereignty and ex-
istence of a national government. Even under the
confederation this power was expressly delegated.*
The remark is unquestionably just, that it is a power
inseparably connected with that of raising a revenue,
and with the duty of protection, which that power im-
poses upon the general government. Though in times
of profound peace it may not be ordinarily necessary
• to anticipate the revenues of a state ; yet the experi-
ence of all nations must convince us, that the burthen
and expenses of one year, in time of war, may more
than equal the ordinary revenue of ten years. Hence,
a debt is almost unavoidable, when a nation is plunged
into a state of war. The least burthensome mode of
contracting a debt is by a loan. Indeed, this recourse
becomes the more necessary, because the ordinary du-
ties upon importations are subject to great diminution
and fluctuations in times of war ; and a resort to direct
taxes for the whole supply would, under such ch'cum-
1 Article 9.
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504 CONSTITUTION OF THE D. STATES. [bOOK III.
Stances, become oppressive and ruinous to the agricul-
tural interests of the country.^ Even in times of peace
exigencies may occur, v^hich render a loan the most
facile, economical, and ready means of supply, either to
meet expenses, or to avert calamities, or to save the
country from an undue depression of its staple produc-
tions. The government of the United States has, on
several occasions in times of profound peace, obtained
large loans, among w^hich a striking illustration of the
economy and convenience of such arrangements will be
found in the creation of stock on the purchase of Lou-
isiana. The power to borrow money by the United
States cannot (as has been already seen) in any way be
controlled, or interfered with by the states. The grant-
ing of the power is incompatible with any restraining or
controlling power ; and the declaration of supremacy
in the constitution is a declaration, that no such re-
straining or controlling power shall be exercised,*
^ 1052. The next power of congress is, " to regulate
" commerce with foreign nations, and among the several
** states, and with the Indian tribes."
§ 1053. The want of this power (as has been already
seen) was one of the leading defects of the confedera-
tion, and probably, as much as any one cause, con-
duced to the establishment of the constitution.* It is a
power vital to the prosperity of the Union ; and with-
out it the government would scarcely deserve the name
of a national government ; and would soon sink into
discredit and imbecility.^ It would stand, as a mere
1 1 Tuck. Black. Oomm. App- 245, 246 ; The Federalist, No. 41.
« JVtstm V. City Council of Cfiarlr^tony 2 Peters's R. 449, 468.
3 Gibbons v. Ogden, 9 Wheat R. 1, 225, Johnson J.'s Opinion ; Brwm
y. Maryland^ 12 Wheat R. 445, 446.
4 The FederaliBt, No. 4, 7, 11, 22, 37.
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CH. Xy.] POWERS OP C0N0RES17 — COMMSROS. 605
shadow of sovereignty, to mock our hopes, and mvolre
us in a common ruin.
§ 1054. The oppressed and degraded state of com«
merce, previous to the adoption of the constitution, can
scarcely be forgotten. It was regulated by forei^
nations with a single view to their own interests ; and
our disunited eflforts to counteract their restrietionc^
were rendered impotent by a want of combination^
Congress, indeed^ possessed the power of making trea-^
ties ;- but the inability of the federal gdvemment t»
enforce them had become so apparent, as to rendei^
that power in a great degree useless. Those, who felt
the injury arising from this state of things, and those^
who were capable of estimating the influence of com-^
merce on the prosperity of nations, perceived the
necessity of giving the control over this important sub-
ject to a single government It is not, therefore,, mat^-
ter of surprise, that the grant should be as extensive,
as the mischief, and should comprehend aH fore%n
commerce, and all commerce among the states.*
^ 1055. But this subject has been already so much
discussed, and the reasons for conferring the power so
fully developed, that it seems unnecessary to dweH
farther upon its hnportance and necessity^' In the
convention there does not appear to have been any
considerable (if, indeed, there was any) opposition to
the grant of the power. It was reported in the first
draft of the constitution exactly, as it now stands, ex*
1 Brown v. Stnte of Maryland, 12 Wheat R. 419, 445^446 ; 1 Tucker**
Black. Comtn. App. 248 to 252 ; 1 Amer. Musemn, 8, f72, 1^ 281,263,
288 ; 2 Amer. Museum, 263 to27G ; Id. 371, 372 j The Federaliat, Na 7,
11,22; Mr. Madison's Letter to Mr. Cahell, 18th Sept 1828; 5 Mar-
shall's Life of Washington, ch. 2, p. 74 to 80 ; 2 Pitkm's Hist 189, 192.
a The Federalist, No. 7, 11, 12, 22, 41, 42.
VOL. XL 64
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606 CONSTITUTION OF THE U* STATES. [bOOK III*
cept that the words, " and with the Indian tribes," were
afterwards added ; and it passed without a division.*
^ 1056. In considering this clause of the constitu-
tion several important inquiries are presented. In the
first place, what is the natural import of the terms ; in
the next place, how far the power is exclusive of that
of the states ; in the tlurd place, to what purposes and
for what objects the power may be constitutionally ap-
plied ; and in the fourth place, what are the true nature
and extent of the power to regulate commerce with the
Indian tribes.
^ 1067. In the first place, then, what is the constitu-
tional meaning of the words, " to regulate commerce ;*'
for the constitution being (as has been aptly said) one
of enumeration, and not of definition, it becomes neces-
sary, in order to ascertain the extent of the power, to
ascertain the meaning of the words.* The power is to
regulate ; that is, to prescribe the rule, by which com-
merce is to be governed.' The subject to be regulated
is commerce. Is that limited to traffic, to buying and
selling, or the interchange of commodities ? Or does
it comprehend navigation and intercourse 1 If the for-
mer construction is adopted, then a general term appli-
cable to many objects is restricted to one of its signifi-
cations. If the latter, then a general term is retained
in its general sense. To adopt the former, without
some guiding grounds furnished by the context, or the
nature of the power, would be improper. The words
being general, the sense must be general also, and em-
brace all subjects comprehended under them, unless
there be some obvious mischief, or repugnance to other
1 Journal of Convention, 22(), 257, 260, 356, 378.
s Gibbons v. Ogden, 9 Wheat R. 189,
a 9 Wheat. R. 196.
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CH. XV.] POWERS OF CONGRESS COMMERCE. 507
clauses to limit them. In the present case there is
nothing to justify such a limitation. Commerce un-
doubtedly is traffic ; but it is something more. It is
intercourse* It describes the commercial intercourse
between nations, and parts of nations, in all its branches;
and is regulated by prescribing rules for carrying on
that intercourse. The mind can scarcely conceive a
system for regulating commerce between nations, which
shall exclude all laws concerning navigation; which
shall be silent on the admission of the vessels of one
nation into the ports of another ; and be confined to
prescribing rules for the conduct of individuals in the
actual employment of buying and' selling, or barter.^
§ 1058. If commerce* does not include navigation,
the government of the Union has no direct power over
that subject, and can make no law prescribing, what
shall constitute American vessels, or requiring, that
they shall be navigated by American seamen. Yet
this power has been exercised from the commence-
ment of the government ; it has been exercised with the
consent of all America; and it has been always, under-
stood to be a commercial regulation. The power over
navigation, and over commercial intercqurse, was one of
the primary objects, for which the people of America
adopted their government ; and it is impossible, that
the convention should not so have understood the word
^ commerce,'' as embracing it* Indeed, to construe
the power, so as to impair its efficacy, would defeat the
very object, for which it was introduced into the con-
stitution;' for there cannot be a doubt, that to exclude
1 Gibbons V. Ogden, 9 Wheat. 189, 190; Id. 229, 230.
2 9 Wheat. R. 190, 191 ; Id. 215, 216, 217; Id. 22f), 230 ; 1 Tucker's
Black. Comm. App. 249 to 252.
3 12 Wheat R. 446.
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508 COirSTITUTION OF THE IT. STATES. [bOOK III.
navigation and intercourse from its scope would be to
entail upon us all the prominent defects of the confede-
ration, and subject the Union to the ill-adjusted sys-
tems of rival states, and the oppressive preferences of
foreign nations in favour of their own navigation.^
^ 1059. The very exceptions found in the constitu-
^on demonstrate this ; for it would be absurd, as well
^ useless, to except from a granted power that, which
was not granted, or that, which the words did not com-
prehend. There are plain exceptions in the constitU"
tion from the power over navigation, and plain inhibi-
tions to the exercise of that power in a particular way.
Why should these be madje, if the power itself was not
jmderstood to be granted? The clause already cited,
that no preference shall be given by any regulation of
iDommerce or revenue to the ports of one state over
those of another, is of this nature^ This clause cannot
})e understood, as applicable to- those laws only, which
fire passed for purposes of revenue, because it is ex»-
pressly applied topommercial regulations ; and the most
pbvious preference, which can be given to one port
over another, relates to navigation. But the remaining
part of the sentence directly points to navigation. "Nor
^hall vessels, bound to or from one state, be obliged to
pnter, clear, or pay duties in another.'' ^ In short, our
whole system for the encouragement of navigation in
the coasting trade and fisheries, is exclusively founded
upon this supposition. Yet no one has ever been bold
enough to question the constitutionality of the laws,
creating this system.'
1 1 Tucker's Black. Comm. App. 247, 248,349.
a 9 Wheat R. l»l.
3 9 Wheat R. 191, 215, 216 ; JSTorth Biver Sleamboat Company v. Lip-
ing$Umy 3 Cowen's R. 713^
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CH. XV.] POWERS OF CONGRESS COMMERCE. 509
§ 1060. Foreign and domestic intercourse has been
universally understood to be within the reach of the
power. How, otherwise, could our systems of prohi-
bition and non-intercourse be defended ? From what
other source has been derived the power of laying em-
bargoes in k time of peace, and without any reference
to war, or its operations ? Yet this power has been
universally admitted to be constitutional, even in times
of the highest political excitement. And although the
laying of an embargo in the form of a perpetual law was
contested, as unconstitutional, at one period of our po-
litical history, it was so, not because an embargo was
not a regulation of commerce, but because a perpetual
embargo was afti annihilation, and not a regulation of
commerce.* It may, therefore, be safely affirmed, that
the terms of the constitution have_ at all times been un-
derstood to mclude a power over navigation, as well as
trade, over intercourse, as well as traffic ;* and, that, in
the practice of other countries, and especially in our own,
there has been no diversity of judgment or opinion.
During our whole colonial history, this was acted upon
by the British parliament, as an uncontested doctrine.
That government regulated not merely our traffic with
foreign nations, but our navigation, and intercourse, as
unquestioned functions of the power to regulate com-
merce.'
1 9 Wheat 193; 1 Kent's Coram. Lect 19, p. 404, 405; The Brigan-
tine William, 2 Hall's Law Journal, 265 ; Sergeant on Const, ch. 28,
p. 290, &c.
9 9 Wheat 193, 215, 216, 217; Id. 226; 12 Wheat R. 440, 447;
JSTorth River Steamboat Company v. Livingston, 3 Cowen's R. 713.
3 Gibbons v. Ogden, 9 Wheaton's R. 1, 201 ; Ih.224; lb. 225 to 228.
See Mr. Verplank's letter to Col. Drayton in 1831 ; Resolves of Con-
gress, 14th Oct 1774, (1 Joarnal of Congress, 27) ; 2 Marshall's Life of
Washington, (in five volumes,) p. 77, 81 ; Dr. Franklin's ELy%minatioD,
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510 CONSTITUTION OF THE V. STATES. [bOOR III.
^ 1061. This power the constitution extends to
commerce with foreign nations, and among the several
states, and with the Indian tribes. In regard to for-
eign nations, it is universally admitted, that the words
comprehend every species of commercial intercourse.
No sort of trade or intercourse can be carried on be-
tween this country and another, to which it does not
extend. Commerce, as used in the constitution, is a
unit, every part of which is mdicated by the term. If
this be its admitted meaning in its application to foreign
nations, it must carry the same meaning throughout the
sentence.^ The next words are " among the several
states..*' The word "among'' means intermingled
with. A thing, which is among otherl, is intermingled
. with them. Commerce among the states cannot stop
at the external boundary line of each state, but may be
introduced into the interior. It does not, indeed, com-
prehend any commerce, which is purely internal, be-
tween man and man in a single state, or between dif-
ferent parts of the same state, and not extendmg to, or
affecting other states. Commerce among the states
means, commerce, which concerns more states than one.
It is not an apt phrase to indicate the mere mterior
traffic of a single state. The completely mtemal coiH-
merce of a state may be properly considered, as reserv-
ed to the state itself.*
§ 1062. The importance of the power of regulating
commerce among the states, for the purposes of the
before the house of commons, in 1766 ; Dickerson's Farmer's Letters,
No. 2, 1767 ; 1 Jefferson's Corresp. 7 ; Burke's Speech on American
Taxation, 1774.
1 GMom ▼. Ogden, 9 Wheaton's R. 194.
8 Gibbon's v. Ogden, 9 Wheaton's R. 194, 195, 196 ; Brown v. Mary-
land, 12 Wheaton, 446, 447.
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OH. XV.] POW£RS OF CONGRESS COMMERCE. 611
Union, is scarcely less^ than that of regulating] it with
toreign states.* A very material object of this power is
the relief of the states, which import and export through
other states, from the levy of improper contributions on
them by the latter. If each state were at liberty to
regulate the trade between state and state, it is easy to
foresee, that ways would be found out to load the articles
of import and export, during their passage through the
jurisdiction, with duties, which should fall on the tnakers
of the latter, and the consumers of the former.* The
experience of the American states during the confed-
eration abundantly establishes, that such arrangements
could be, and would be made under the stimulating in-
fluence of local interests, and the desire of undue gain.^
Instead of acting as a nation in regard to fordgn pow-
ers, the states individually commenced a system of
restraint upon each other, whereby the interests of for-
eign powers were promoted at their expense. When
one state imposed high duties on the goods or vessels
of a foreign power to countervail the regulations of
such powers, the next adjoining states imposed lighter
duties to invite those articles into their ports, that they
might be transferred thence into the other states, se-
eming the duties to themselves. This contracted policy
in some of the states was soon counteracted by etchers.
Restraints were immediately laid on such commerce
by the suffering states ; and thus a state of affairs dis-
orderly and unnatural grew up, the necessary tendency
of which was to destroy the Union itself.^ The history
■ — * ' '
1 See the Federalist, No. 6, 7, 11, 12, 22, 41, 42; J^. R, Steamboat
Company v. Livingston, 3 Cowen's R. 713.
8 12 Wheaton'a R. 448, 449; 9 Wheaton, 199 to 204.
3 The Federalist, No. 42 ; 1 Tuck. Black. Coram. App. 247 to 252.
4 See President Monroe's Exposition and Message, 4 May, 1822, p.
31,32.
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512 CONSTITUTION OF THE U. STATES. [bOOK III.
of Other nations, also, furnishes the same admonition.
In Switzerland, where the union is very slight, it has
been found necessary to provide, that each canton shall
be obliged to allow a passage to merchandise through
its jurisdiction into other cantons without an augmen-
tation of tolls. In Germany, it is a law of the empire,
that the princes shall not lay tolls on customs or bridges^
rivers, or passages, without the consent of the emperor
and diet But these regulations are but imperfectly
obeyed ; and great public mischiefs have consequently
followed.^ Indeed, without this power to regulate
commerce among the states, the power of regulating
foreign commerce would be incomplete and ineffectual/
The very laws of the Union in regard to the latter,
whether for revenue, for restriction, for retaliation, or
for .encouragement of domestic products or pursuits,
might be evaded at pleasure, or rendered impotent*
In short, m a practical view, it is impossible to separate
the regulation of foreigi^ commerce and domestic com-
merce among the states from each other. The same
public policy applies to each ; and not a reason can be
assigned for confiding the power over the one, which
does not conduce to establish the propriety of conced-
ing the power over the other.*^
^ 1063. The next inquiry is, whether this power
to regulate commerce is exclusive of the same power
in the states, or is concurrent with it * It has been
1 The Federalist, No. 42, 22. -
» The Federalist, No. 42.
3 The Federalist, No. 11, 12.
4 See the opinion of Mr. Justice Johnson, 9 Wheaton's R. 224 to 228.
5 In the convention, it was moved to amend the article, bo as to give
to congress ^ the solo and exclusive " power ; hut the propo6iti«» ^
rejected by the vote of six states against five. *
* Jovraol of Coovealion, SfMVSZO/
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CH. ZV.] POWERS OF CONGRESS — COMMERCE. 613
settled upon the most solemn deliberation, that the
power is exclusive in the government of the United
States.* The reasoning, upon which this doctrme is
founded, is to the following eflfect. The power to reg-
ulate commerce is general and unlimited in its terms.
The full power to regulate a particular subject implies
the whole power, and leaves no residuum. A grant of
the whole is incompatible with the existence of a right
in another to any part of it. A grant of a power to
regulate necessarily excludes the action of sdl others,
who would perform the same operation on the same
thmg. Regulation is designed to mdicate' the entire
result, applying to those parts, which remain as they
were, as well as to those, which are altered. It pro-
duces a uniform whole, which is as much disturbed and
deranged by changing, |What the regulating power de-
signs to have unbounded, as that, on which it has
operated.*
§ 1064. The power to regulate commerce is not at
all like that to lay taxes. The latter may well be con-
current, while the former is exclusive, resulting from
the different nature of the two powers. The power of
congress in laying taxes is not necessarily, or niiturally
inoonsistent with that of the states. Each may lay a tax
on the same property, without interfering with the action
of the other ; for taxation is but taking small portions
from the mass of property, which is susceptible of ahnost
infinite division. In imposing taSces for state purposes,
a state is not doing, what congress is empowered to do.
Congress is not empowered to tax for those purposes,
■
1 Gibbons v. Ogden, 9 Wheaton's R. 1; Brown v. Maryland^ 12
Wheaton*s R. 419, 445. 446; 1 Tucker's Black. Comm. App. 180, 309;
JV. R, SUam Boat Company ▼. Lknngstofiy 3 Cowen's R. TISL
9 9 Wheaton's R. 196, 196, 209 ; lb. 237, 228.
VOL. II. 66
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514 coKSTmrrroic or ths v. statss. [book hi.
which are within the exclusive province of the states.
When, then, each government exercises the power of
taxation, neither is exercismg the power of the other.
But when a state proceeds to regulate commerce with
foreign nations, or among the several states, it is ex^-
cising the very power, which is granted to congress ; and
b doing the very thing, which congress is authorized
to do. There is no analogy, then, between the power
of taxation, and the power of regulating commerce.*
§ 1065. Nor can any power be inferred in the states
to regulate commerce from other clauses in the consti-
tution, or the acknowledged rights exercised by the
states. The constitution has prohibited the states from
l^ing any impost or duty on imports or exports ; but
this does not admit, that the state might otherwise have
exercised the power, as a regulation of commerce. The
laying of such imposts and duties may be, and indeed
often is used, as a mere regulation of commerce, by
governments possessing that power.* But the laying
of such imposts and duties is as certainly, and more
usually, a right exercised as a part of the power to lay
taxes ; and with this latter power the states are clearly
entrusted. So, that the prohibition is an exception from
the acknowledged power of the state to lay taxes, and
not from the questionable power to regulate commerce.
Indeed, the constitution treats these as distinct and in-
dependent powers. The same remarks apply to'a duty
on tonnage.'
§ 1066. Nor do the acknowledged powers of the
states over certain subjects, having a connexion with
1 Wheaton'8 R. 199, 200.
8 9 Wheaton'8 R. 201, 302; 1 Jefferaon'i Corresp. 7; The Federalift,
No. 56; 12 Wheaton's R. 446, 447.
S9Wheaton?8R.201, 202.
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CfL XVJ] TOWSRS OF OOHORCSS — COMMERCE. 516
commerce, in any degree impugn this reasoning. These
powers are entirely distmet in their natm^ from that to
regulate commerce ; and though the same means may
be resorted to, for the purpose of carrymg each of these
powers into effect, this by no just reasoning furnishes
any ground to assert, that they are identical^ Among
these, are inspection laws, health laws, laws regulating
turnpikes, roads, and ferries, all of which, when exer-
cised by a state, are legitimate, arismg from the
general powers belonging to it, unless so far as they
conflict with the powers delegated to congress.* They
are not so much regulations of commerce, as of police ;
and may truly be said to belong, if at all to commerce,
to that which is purely internal. The pilotage laws of
the states may fall under the same description. But
they have been adopted by congress, and without ques-
tion are controllable by it.*
§1067. The reasoning, by which the power given to
congress to regulate commerce is maintained to be ei;:-
clusive, has not been of late seriously controverted;
and it seems to have the cheerful acquiescence of the
learned tribunals of a particular state, one of whose acts
brought it first under judicial examination.^
^ 1068. The power to congress, theod, being exclu-
sive, no state is at liberty to pass any laws imposing a
1 See CinfiddY. Cargm,4 Wash. Cir.R. 371, 379, ^.
» 9 Wheaton's R. 203 to 207, 209.
« 9 Wheaton'8 R. 207, 208, 209.
« 1 Keat's Corom. Lect 19, p. 404, 410, 411. See also Rawie on die
CoMtitution, ch. 9, p. 81 to 84 ; Sergeant on Const cb. 28, p. 291, 292.
^- There is a very able and candid review of the whole subject by Mr.
Chancellor Kent in his excellent commentaries. (I Kent's Comm. Lect
19, p. 404.) I gladly avail myself of this, as well as of all oth«r occ»-
sions, to recommend his learned labours to those, who seek to study the
law, or the constitution, with a liberal and enlightened sjnrit
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516 coNSTiTirrioN of the v. states, [book hi.
tax upon importers, importiDg goods from foreign comi-
trics, or from other states. It is wholly immaterial,
whether the tax be laid on the goods imported, or on
the person of the importer. In each case, it is a restric-
tion of the right of commerce, not conceded to the states.
As the power of congress to regulate commerce reaches
the interior of a state, ^ it might be capable of authoriz-
ing the sale of the articles, which it introduces. Com-
merce is mtercourse ; * and one of its most ordinary
ingredients is traffic. It is inconceivable, that the
power to authorize traffic, when given in the most com-
prehensive terms, with the intent, that its efficacy
should be complete, should cease at the point, when
its continuance is indispensable to its value. To what
purpose should the power to allow importation be given,
unaccompanied with the power to authorize the sale of
the dung imported ? Sale is the object of importation ;
and it is an essential ingredient of that mtercourse, of
which importation constitutes a part As congress has
the right to authorize importation, it must have a right
to authorize the importer to sell. What would be
the language of a foreign government, which should be
informed, that its merchants after importation were
forbidden to sell the merchandize imported? What
answer could the United States give to the complamts
and just reproaches, to which such extraordinary con-
duct would expose them 1 No apology could be re-
ceived, or offered. Sued a state of things would anni-
hilate commerce. It is no answer, that the tax may be
moderate ; for, if the power exists m the states, it may
be carried to any extent they may choose. If it does
1 9 Wbeaton's R. 197 to 204.
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CH. XY.] P0WSR8 or COKGR£89 — COMHXRCX. 617
not exist, every exercise of it is, pro tanto^ a violation of
the power of congress to regulate commerce. *
^ 1069. How far any state possesses the power to
authoHze an obstruction of any navigable stream or
creek, in which the tide ebbs and flows', within its ter-
ritorial limits, as by authorizing the erection of a dam
across it, has been a subject of much recent discussion.
If congress, in regulating commerce, should pass any
act, the object of which should be to control state leg-
islation over such navigable streams or creeks, there
would be litde difficulty in saying, that a state law in
conflict with such an act would be void. But if con-
gress has passed no general or special act on the sub-
ject, the invalidity of such a state act must be placed
entirely upon its repugnancy to the power to regulate
commerce in its dormant state. Under such circum-
stances, it would be difficult to affirm, that the sove-
reignty of a state, acting on subjects within the reach of
other powers, beside that of regulating commerce, and
which belonged to its general territorial jurisdiction,
would be intercepted by the exclusive power of com-
merce, unexercised by congress, over the same subject-
matter. The value of the property on the banks of
such streams and creeks may be materially enhanced
by excluding the waters from them and the adjacent low
and marshy grounds, and the health of the inhabitants
be improved. Measures calculated to produce these
objects, provided they do not come into collision with
the power of the general government, are undoubtedly
within those, which arc reserved to the states.*
1 Brown v. State of Maryland, 12 Wheaton's R. 419, 445 to 447;
9 Wheaton'sR. 197. &c. — Mr. Justice ThomfMon disaented from tbi«
doctrine, as will be seen in bis opinion in 12 Wheaton's R. 449, he.
> WUmm T. EUtckbird Creek Company, 3 Peteis's R. 345.
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518 CONSTITUTION OF THE U. STATES. [BOOK UK
§ 1070. In the next place, to what extent, and for
what objects and purposes the power to regulate com-
merce may be constitutionally applied,
§ 1071. And first, among the states. It is not doubt-
ed, that it extends to the regulation of navigadon, and
to the coasting trade and fisheries, within, as well as
without any state, wherever it is connected with the
commerce or intercourse with any other state, or with
foreign nations.^ It extends to the regulation and gov-
ernment of seamen on board of American ships ; and
to conferring privileges upon ships built and ovimed in
the United States in domestic, as well as foreign trade.^
It extends to quarantine laws, and pilotage laws, and
wrecks of the sea.' It extends, as well to the naviga-
tion of vessels engaged in carrymg passengers, and
whether steam vessels or of any other description, as
to the navigation of vessels engaged in traffic and gen-
eral coasting business.^ It extends to the laymg of
embargoes, as well on domestic, as on foreign voyages.^
It extends to the construction of light-houses, the placing
of buoys and beacons, the removal of obstructions
to navigation in creeks, rivers, sounds, and bays, and
the establishment of securities to navigation against the
inroads of the ocean. It extends also to the designa-
tion of particular port or ports of entry and delivery for
the purposes of foreign commerce.* These powers
have been actually exerted by the national government
I QMant v. Ogden, 9 Wheat R. 189 to 106 ; Id. 211 to9i5; 1 Tuck.
Black. Comm. App. 247 to 249 ; Id. 250.
s 1 Tuck. Black. Comm. App. 252.
3 9 Wheat R. 203, 204, 205, 206, 207, 206; 1 Tuck. BlacL Comm.
App. 251, 252.
4 9 Wheat R. 214, 915 to 221.
ft 9 Wheat R. J91, 192; 1 Kent's Comm. Lect 19, p. 404» 40S.
e 1 Tuck. Black. Comm. Ai^ 249, 251 ; 9 Wheat R. 206» 209
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CH. XV.] P0WXR8 OF OOlTGIUeSS-— COMMXSOB. 510
tinder a system of laws, many of which commenced
with the eariy establishment of the constitution ; and
they have continued unquestioned unto our day, if
not to the utmost range of their reach, at least to that
of their ordinary application.^
§ 1072. Many of the like powers have been applied
in the regulation of foreign commerce. The commer-
cial system of the United States has also been employ-
ed sometimes for the purpose of revenue ; sometimes
for the purpose of prohibition ; sometimes for the pur-
pose of retaliation and commercial reciprocity ; some-
times to lay embargoes ; ' sometimes to encourage do-
mestic navigation, and the shipping and mercantile inter-
est by bounties, by discriminating duties, and by special
preferences and privileges ; ' and sometimes to regu-
late intercourse with a view to mere political objects,
such as to repel aggressions, increase the pressure of
war, or vindicate the rights of neutral sovereignty. la
all these cases, the right and duty have been conceded
to the national government by the unequivocal voice ct
the people.
^ 1073. A question has been recently made, wheth-
er congress have a constitutional authority to apply the
power to regulate commerce for the purpose of encour-
aging and protecting domestic manufactures. It is not
denied, that congress may, incidentally, in its arrange-
1 Mr. Hamilton, in bis celebrated argument on tbe national bank,
(23d Feb. 1791,] enumerates tbe following as witbin tbe power to regu-
late commerce, viz. tbe regulation of policies of insurance, of salvage
upon goods found at sea, and tbe disposition of sucb goods ; tbe regu-
lation of pilots; and tbe regulation of bills of excbange drawn by one
mercbant upon a mercbant of anotber state ; and, of course, tbe regula-
tion of foreign bills of excbange."*
3 Sergeant on Const Law cb. 28, (cb. 30, 2d edlL)
3 See 1 Elliot's Debates, 144.
* 1 Hamilton'f Work'i, 134.
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620 CONSTITUTION OF THE U. STATES. [bOOK III*
ments for revenue, or to countervail foreign restrictions,
encourage tlie growth of domestic manufactures. But
it is earnestly and strenuously insisted, that, under the
colour of regulating commerce, congress have no right
permanently to prohibit any importations, or to tax
any unreasonably for the purpose of securing the home
market to the domestic manufacturer, as they thereby
destroy the commerce entrusted to them to regulate, and
foster an interest, with which they have no constitutional
power to interfere.* This opinion constitutes the lead-
ing doctrine of several states in the Union at the pres-
ent moment ; and is maintained, as vital to the existence
of the Union. On the other hand, it is as eamesdy ^d
strenuously maintained, that congress does possess the
constitutional power to encourage and protect manu-
factures by appropriate regulations of commerce ; and
that the opposite opinion is destructive of all the pur-
poses of the Union, and would annihilate its value.
^ 1074. Under such circumstances, it becomes
indispensable to review the grounds, upon which the
doctrine of each party is maintained, and to sift them to
the bottom ; since it cannot be disguised, that the con-
troversy still agitates all America, and marks the divi-
sions of party by the strpngest lines, both geographical
and political, which have ever been seen since the
establishment of the national government.
^ 1076. The reasoning, by which the doctrine is
maintained, that the power to regulate commerce can-
not be constitutionally applied, as a means, du^cdy to
encourage domestic manufactures, has been in part
already adverted to in considering the extent of the
power to lay taxes. It is proper, however, to present
1 See Address of the Philadelphia Free Trade Convention, in Sep-
tember and October 1831.
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CH. Xir.] POWERS OF COXTGRESS—* COMMERCE. 521
it entire in its present connexion. It is to the following
effect — The constitution is one of limited and enu-
inerated powers ; and none of them can be rightfully
exercised beyond the scope of the objects, specified in
those powers. It is not disputed, that, when the power
is given, all the appropriate means to carry it into effect
are included. Neither is it disputed, that the laying of
duties is, or may be an appropriate means of regulating
commerce. But the question is a very different one,
whether, under pretence of an exercise of the power to
regulate commerce, congress may in fact impose duties
for objects wholly distinct fit)m commerce. The ques-
tion comes to this, whether a power, exclusively for the
regulation of commerce, is a power for the regula-
tion of manufactures 1 The statement of such a ques-
tion would seem to involve its own answer. Can a
power, granted for one purpose, be transferred to anoth-
er 1 If it can, where is the limitation in the constitu-
tion 1 Are not commerce and manufactures as distinct,
as commerce and agriculture ? If they are, how can a
power to regulate one arise from a power to regulate
the other ? It is true, that commerce and manufactures
are, or may be, intimately connected with each other.
A regulation of one may injuriously or beneficially af-
fect the other. But that is not the point in controversy.
It is, whether congress has a right to regulate that,
which is not committed to it, under a power, which is
committed to it, simply because there is, or may be an
intimate connexion between the powers. . If this were
admitted, the enumeration of the powers of congress
would be wholly unnecessary and nugatory. Agricul-
ture, colonies, capital, machinery, the wages of labour,
the profits of stock, the rents of land, the punctual per-
formance of contracts, and the diffu^on of knowledge
VOL. II. 66
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622 COKSTlTUTIOlf OF TH£ U. STATES, [BOOK HI.
would all be within the scope of the power ; for all of
them bear an ultimate relation to commerce. The
result would be, that the powers of congress would
embrace the widest extent of legislative functions, to
the utter demolition of all constitutional boundaries be-
tween the state and national governments. When
duties are laid, not for purposes of revenue, but of retal-
iation and restriction, to countervail foreign restrictic^
they are strictly within the scope of the powCT, as a
regulation of commerce. But when laid to encourage
manufactures, they have nothing to do with it The
power to regulate manufactures is no more confided to
congress, than the power to interfere with the systems of
education, the poor laws, or the road laws of Uie states.
It is notorious, that, in the conventiim^ an attempt wm
made to introduce into the omstitution a powar to
encourage manufactures ; but it was withheld.^ In
stead of granting the power to congress, permission was
given to the states to impose duties, with theconseaatof
that body, to encourage their own manufactures ; and
thus^ in the true spirit of justice, imposing the burthen
on those, who were to be benefited. • It is true, that
congress may, incidentally, when laying duties for rev-
enue, consult the other interests of the country. They
may so arrange the details, as indirectly to aid manu-
factures. And this is the whole extent, to which con-
gress has ever gone until the tariffs, which have given
rise to the present controversy. The former prece-
dents of congress are not, even if admitted to be au-
thoritative, applicable to the question now presented.*
1 ▲ proposition was leferred to the committee of Details and Revi-
sion " to establish public institutions, rewards, and immunities, for the
promotion of agriculture, commerce, trade, and manufactures." The
committee never reported on it Journ. of Convention, p. 261.
s The above arguments and reasoning have been gathered, mtfu^B
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€H^ XV.} POWERS OF COlf CARESS —^ COSfMERCfi. 625
§ 1076. The reasoning of those, who maintain the
doctrine, that congress has authority to apply the power
to regulate commerce to the purpose of protecting ancf
encouraging domestic manufactures, is to the following
effect. The power to regulate commerce, being in its
terms unKmited, includes all means appropriate to the
end, and all means, which have been usually exerted
under the power. No one can doubt or deny, that a
power to regulate trade involves a power to tax it. It
is a familiar mode, recognised in the practice of all
nations, and was known and admitted by the United
States, while they were colonies, and has ever smce
been acted upoa without opposition or question. The
American cdonies whoHy denied the authority of the
British parliament to tax them, except as a regulation
of commerce ; but they admitted this exercise of power,
a6 legitimate and unquestionable. The distinction was
with diflSculty msdntained m practice between laws for
the regulation of commerce by way of taxation, and
laws, which were made for mere monopoly, or restric-
tiim, when they incidentally produced revenue.^ And
it is certain, that the main and admitted object of par-
liamentary regulations of trade with the colonies was
the encouragement of manufactures in Great-Britain.
t ■ .1 .
could be, from documents admitted to be of bigh authority by those, wbo
maintaia the restrictive doctrine. See the Exposition and Protest of
the South Carolina legislature, in Dec. 1828, attributed to Mr. Vice Presi-
dent Calhoun ; the Address of the Free Trade Convention at Philadel-
phia, in Oct 1831^ attributed to Mr. Attorney General Berrien ; the
Oration of the Hon. Mr. Drayton, on the 4th of July, 1831 ; and the
Speech of Mr. Senator Hayne, 9th of Jan. 1832. See also 4 Jefferson's
Corresp. 421.
1 See Mr. Madison's LeUer to Mr. CabeU, 18th Sept 1828; Mr. V«r-
planck's Letter to Col. Drayton, in 1831 ; Address of the New- York Con-
vention in fevour of Domestic Industry, November, 1831, p. 12, 13, 14
9Wh0at.K.2O0; 1 Pitk. Hist ch. 3, p. 93 to lOd
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624 COlfSTITVTION OF THE U. 8TATS8. [BOOK III.
Other nations have, in like manner, for like purposes,
exercised the like power. So, that there is no novelty
in the use of the power, and no stretch in the range of
the power.
§ 1077. Indeed, the advocates of the opposite doc-
trine admit, that the power may be applied, so as inci-
dentally to give protection to manufacturei?, when rev-
enue is the principal design ; and that it may also be
applied to countervail the injurious regulations of foreign
powers, when there is no design of revenue. These
concessions admit, then, that the regulations of com-
merce are not wholly for purposes of revenue, or wholly
confined to the puiposes of commerce, considered per
se. If this be true, then other objects may enter into
commercial regulations; and if so, what restraint is
there, as to the nature or extent of the objects, to which
they may reach, which does not resolve itself into a
question of expediency and policy ? It may be ad-
mitted, that a power, given for one purpose, cannot be
perverted to purposes wholly opposite, or beside its
legitimate scope. But what perversion is there in ap-
plying a power to the very purposes, to which it has
been usually applied '\ Under such circumstances, does
not the grant of the power without restriction concede,
that it may be legitimately applied to such purposes 1
If a different intent had existed, would not that intent
be manifested by some corresponding limitation ?
§ 1078. Now it is well known, that in commercial
and manufacturing nations, the power to regulate com-
merce has embraced practically the encouragement of
manufactures. It is belie ved,xthat not a single exception
can be named. So, in an especial manner, the power has
always been understood in Great-Britadn, fit)m which
we derive our parentage, our laws, our language, and
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CH. XT.] POWEES 07 COKGRE88 — COMMERCS. 626
our notions upon commercial subjects. Such was con-
fessedly the tiotion of the diflferent states in the Union
under the confederation, and before the formation of
the present constitution. One known object of the
policy of the manufacturing states then was, the protec-
tion and encouragement of their manufactures by regu-
lations of commerce.* And the exercise of this power
was a source of constant difficulty and discontent ; not
because improper of itself; but because it bore injuri-
ously upon the commercial arrangements of other states.
The want of uniformity in the regulations of commerce
was a source of perpetual strife and dissatisfaction, of
mequalities, and rivalries, and retaliations among the
states. When the constitution was framed, no one
ever imagined, that the power of protection of manu-
factures was to be taken away from all the states, and
yet not delegated to the Union. The very suggestion
would of itself have been fatal to the adoption of the
constitution. The manufacturing states would never
have acceded to it upon any such terms ; and tl^ey never
could, without the power, have safely acceded to it; for it
would have sealed their ruin. The same reasoning
would apply to the agricultural states ; for the regula-
tion of commerce, with a view, to encourage domestic
agriculture, is just as important, and just as vital to the
interests of the nation, and just as much an application
of the power, as the protection or encouragement of
manufactures. It would have been strange indeed, if
the people of the United States had been solicitous
solely to advance and encourage commerce, with a total
disregard of the interests of agriculture and manufac-
tures, which had, at the time of the adoption of the con-
1 1 American Museam, 16.
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026 comnrrrvTioH of thb u. statss, [book iu.
stitutioDy an unequiTocal {M^ponderance throughout the
Union. It is manifest from contemporaneous docu-
ments, that one object of the constitution was, to en-
courage manufactures and agriculture by this very use
of the power.*
^ 1079. The terms, then, o( the constitution are suf-
ficiendy large to embrace the power ; the practice of
other nations, and especially of Great-Britain and o[ the
American states, has been to use it in this maimer;
and this exercise of it was one of the very grounds^
upon which the establi^ment of the constitution was
urged and vindicated. The argument, then, in its
farour would seem to be absdutely irresisttt>te under
this aspect But there are other very weighty consid*
erations, which enforce it.
§ 1080. In the first place, if congress does not pos-
sess the power to encourage domestic manu&etures by
regulations o( commerce, the power is annihilated for
the whole nation. The states are depiiTed of it. They
have made a voluntary surrender of it; and yet it ex-
ists not in the national goyemment It is then a mere
n(mentity. Such a policy, ydimtarily adopted by a
free people, in subversion of some oi their dearest rights
and interests, would be most extraordinary in itsd^
without any assignable motive or reason for so great a
sacrifice, and utterly without examine in the history of
the world* No man can doubt, that domestic agricul-
ture and manufactures may be most essentially promot*
ed and protected by regulations of commerce. No
1 1 £lbot*B Debates, 74, 75, 76, 77, 115; 8 Elliot^kDebelet, 81,32, 93
3Amer.MQMajn,371,372,373;8Amer Mueetm, 62,554, 556^557
The Federalist, No. 12, 41 ; 1 Tuck. Black. Comm. App. 237, 238
} American Moaeam, 16, 282, 289, 429, 432 ; Id. 434, 436 ; Hamilton's
Report on Mannlactarea, im 1791 ; 4 EUiol's Debates, App. 351 to 354.
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CH. XVJ] POW£RS or COlfOREfiS — COMMXRCE. 627
man can doubt, that it is the most usual, and genenJly
the most efficient means of producing those results.
No man can question, that in these great objects the
different states of America have as deep a stake, and as
vital interests, as any other naUon. Why, then, should
the power be surrendered and annihilated? It would
produce the most serious mischiefs at home ; and would
secure the most complete triumph over us by foreign
nations. It would introduce and perpetuate national
debility, if not national ruin. A foreign nation might, as
a ccmqueror, impose iqpon us this restraint, as a badge
of dependence, and a sacrifice of sovereignty, to sub-
serve its own interests ; but that we should impose it
upon oorselvei, is inconceivable. The achievement of
our mdependence was almost worthless, if such a sys«
tem WIS to be pursued. It would be in effect a per*
petuaticm of that very system of monopoly, of encour-
agement of foreign manufactures, and depression of
domestic industry, which was so much complained of
during our colonial dependence ; and which kept all
America in a state of poverty, and slavish devotion to
British mterests. Under such circumstances, the con-
stitution would be established, not for the purposes
avowed in the preamble, but for the exclusive benefit
and advancement of foreign nadons, to aid their manu-
factures, and sustain their agriculture. Suppose cotton,
rice, tobacco, wheat, com, sugar, and other raw materials
could be, or should hereafter be, abundantly produced
in foreign countries, under the fostering hands of their
governments, by bounties and commercial regulations,
so as to become cheaper with such aids than our own ;
are all our markets to be opened to such products with-
out any restraint, simply because we may not want
revenue, to the rum of our products and industry ?. Is
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628 ooNSTiTimON of the v. states, [book Ilf
America ready to give every thing to Europe, without
any equivalent ; and take in return whatever Europe
may choose to give, upon its own terms 1 The most
servile provincial dependence could not do more evils.
Of what consequence would it be, that die national
government could not tax our exports, if foreign gov-
ernments might tax them to an unlimited extent, so as
to favour their own, and thus to supply us with the
same articles by the overwhelming depression of our
own by foreign taxation 1 When it is recollected, with
what extreme discontent and reluctant obedience the
British colonial restrictions were enforced in the manu-
&cturing and navigating states, while they were colo-
nies, it is incredible, that they should be wilUng to adopt
a government, which should, or might entail upon them
equal evils in perpetuity. Commerce itself would ulti-
mately be as great a sufferer by such a system, as the
other domestic interests. It would languish, if it did
not perish. Let any man ask himself, if New-England^
or the Middl^ states would ever have consented to rat-
ify a constitution, which would afford no protection to
their manufactures or home industry. If the constitu-
tion was ratified under the belief, sedulously propagated
on all sides, that such protection was afforded, would it
not now be a fraud upon the whole people to give a
different construction to its powers 1
§ 1081. It is idle to say, that with the consent of
congress, the states may lay duties, on imports or ex-
ports, to favour their own dcxnestic manufactures. In
the first place, if congress could constitutionally ^ve
such consent for such a purpose, which has been doubt-
ed ; * they would have a right to refuse such consent,
1 See Mr. Madison's Letter to Mr. Cabell, ISth Sept 1828 ; 4 Elliot's
Debates, App. 345.
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ch^xtJ powers of congress -^commerce. 529
and would certainly refuse it, if the result would
be what the advocates of free trade contend for. In
the next place, it would be utterly impracticable with
such consent to protect their manufactures by any such
local regulations. To be of any value they must
be general, and uniform through the nation. This is
not a matter of theory. Our whole experience under
the confederation established beyond all controversy
the utter local futility, and even the general mischiefs of
independent state legislation upon such a subject It
furnished one of the strongest grounds for the establish-
ment of the constitution.^
§ 1082. In the next place, if revenue be the sole
legitimate object of an impost, and the encouragement
of domestic manufactures be not within the scope of the
power of regulating trade, it would follow, (as has been
already hinted,) that no monopolizing or unequal regu-
lations of foreign nations could be counteracted. Un-
der such ch'cumstances, neither the staple articles of
subsistence, nor the essential implements for the public
safety, could be adequately ensured or protected at
home by our regulations of commerce. The duty
might be wholly unnecessary for revenue ; and inci-
dentally, it might even check revenue. But, if con-
gress may, in arrangements for revenue, incidentally and
designedly protect domestic manufactures, what ground
is there to suggest, that they may not incorporate this
design through the whole system of duties, and select
and arrange them accordingly 1 There is no constitu-
tional measure, by which to graduate, how much shall
be assessed for revenue, and how much for encourage-
ment of home industry. And no system ever yet
1 Mr. MadisoQ's Letter to Mr. Cabell, 18th Sept 1838,- 4 EUiof^
Debates, App. 345.
yOL. II. 67
, Digitized by VjOOQIC
630 COirSTITUTION OF THE JJ. STATES. [BOOJC IH.
adopted bas attempted, and in all probability none
hereafter adopted will attempt, wholly to sever the one
object from the other. The constitutional objection in
this view is purely speculative, regardmg only future
possibilities.
§ 1083. But if it be conceded, (as it is,) that the
power to regulate commerce includes the power ct
laying duties to countervail the regulations and restric-
tions of foreign nations, then, what Umits are to be
assigned to this use of the power ? ^ If their com-
mercial regulations, either designedly or incidentally, do
promote their own agriculture and manufactures, and
injuriously affect ours, why may not congress apply a
remedy coextensive with the evil 1 If congress have,
as cannot be denied, the choice of the means, they may
countervail the regulations, not only by the exercise of
the lex talionis in the same way, but in any other way
conducive to the same end. If Great Britain by com-
mercial regulations restricts the introduction of our sta-
ple products and manufactures into her own territories,
and levies prohibitory duties, why may not congress
apply the same rule to her staple products and manu-
factures, and secure the same market to ourselves?
The truth is, that as soon as the right to retaliate for-
eign restrictions or foreign policy by commercial regu-
lations is admitted, the question, in what manner, and
to what extent, it shall be applied, is a matter of legis-
lative discretion, and not of constitutional authority.
Whenever commercial restrictions and regulations shall
cease all over the world, so far as they favour the
nation adopting them, it will be time enough to consider,
what America ought to do in her own regulations of
commerce, which are designed to protect her own
1 See the Federalist, No. 1], 13.
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OH. XV.] POWERS OF CONGRESS — COMMERCE. 631
industry an^ counteract such favoritism. It will then
become a question, not of power, but of policy. Such a
state of things has never yet existed. In fact the con*
cession, that the power to regulate commerce may
embrace other objects, dian revenue, or even than com-
merce itself, is irreconcilable with the foundation of the
argument on the other side.
§ 1084^ Besides; the power is to regulate com-
merce. And in what manner regulate it? Why
does the power involve the right to lay duties 1 Sim-
ply, because it is a common means of executing the
power. If so, why does not the same right exist as
to all other means equally common and appropriate 1
Why does the power involve a right, not only to lay
duties, but to lay dudes for revenue, and not merely for
the reguladon and restriction of commerce, considered
per se ? No other answer can be given, but that rev-
enue is an incident to such an exercise of the power*
It flows from, and does not create the power. It may
constitute the motive for the exercise of the power, just
as any other cause may ; as for instance, the prohibition
of foreign trade, or the retaliadon of foreign monopoly ;
but it does not constitute the power.
§ 1085. Now, the motive of the grant of the power
is not even alluded to in the constitution. It is not
even stated, that congress shall have power to promote
and encourage domestic navigation and trade. A pow-
er to regulate commerce is not necessarily a power to
advance its interests. It may in given cases suspend
its operations and restrict its advancement and scope.
Yet no man ever yet doubted the right of congress to
lay duties to promote and encourage domesdc naviga-
tion, whether in the form of tonnage dudes, or other
preferences and privileges, either in the foreign trade, or
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632 coirsTiTXTTioir of the u. states, [boojc hi.
coasting trade, or fisheries.^ It is as certain, as any
thing human can be, that the sole object of congress, in
securing the vast privileges to American buik ships, by
such preferences, and privileges, and tonnage duties,
was, to encourage the domestic manufacture of ships^
and all the dependent branches of business!' It speaks
out m the language of all their laws, and has been as
constantly avowed, and acted on, as any single legisla-
tive policy ever has been. No one ever dreamed, that
revenue constituted the slightest ingredient in these
laws. They were purely for the encouragement of
home manufactures, and home artisans, and home pur*
suits. Upon what grounds can congress constitution-
ally apply the power to regulate commerce to one great
class of domestic manufactures, which does not involve
the right to encourage all? If it be said, that naviga-
tion is a part of commerce, that is true. But a power
to regulate navigation no more includes a power to
encourage the manufacture of ships by tonnage duties,
than any other manufacture. Why not extend it to the
encouragement of the growth and manufacture of cotton
and hemp for sails and rigging ; of timber, boards, and
masts ; of tar, pitch, and turpentine ; of iron and wool ;
of sheetings and shirtings ; of artisans and mechanics,
however remotely connected with it 1 There are many
products of agriculture and manufactures, which are
connected with the prosperity of commerce as inti-
mately, as domestic ship building. If the one may be
encouraged, as a primary motive in regulations of com-
merce, why may not the others ? The truth is, that
the encouragement of domestic ship building is within
I See Mr. Jefferson's Report on the Fisheries, 1st Feb. 1791, 10 Amer.
Mus. App. 1, dLc. , 8, &c.
* See Mr. Williamson's Speech in Congress, 8 Amer. Mas. 140.
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CH.XT.] POWERS or CONGRESS — COMMERCE. 633
the scope of the power to regulate commerce, simply,
because it is a known and ordinary means of exercising
the power. It is one of many, and may be used like
all others according to legislative discretion. The
motive to the exercise of a power can never form a
constitutional objection to the exercise of the power.
§ 1086. Here, then, is a case of laying duties, an
ordinary means used in executing the power to regu-
late commerce ; how can it be deemed unconstitutional 1
K it be said, that the motive is not to collect revenue,
what has that to do with the power ? When an act is
constitutional, as an exercise of a power, can it be un-
constitutional from the motives, with which it is passed ?
K it can, then the constitutionality of an act must de-
pend, not upon the power, but upon the motives of the
legislature. It will follow, as a consequence, that the
same act passed by one legblature will be constitutional,
and by another ujjiconstitutional. Nay, it might be
unconstitutional, as well from its omissions as its enact-
ments, since if its omissions were to favour manufactures,
the motive would contaminate the whole law. Such a
doctrine would be novel and absurd. It would confuse
and destroy all the tests of constitutional rights and
authorities. Congress could never pass any law with-
out an inquisition into the motives of every member ;
and even then, they might be re-examinable. Besides ;
what possible means can there be of making such in-
vestigations ? The motives of many of the members
may be, nay must be utterly unknown, and incapable of
ascertainment by any judicial or other inquiry: they
may be mixed up in various manners and degress ; they
may be opposite to, pr wholly independentof each oth-
er. The constitution would thus depend upon pro-
cesses utterly vague, and incomprehensible ; and the
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534 00K8TITUTI0K OF THE U. 8TATE8. [bOOK UU
written inteDt of the legislature upon its words and acts,
the lex scripta^ would be conti^icted or obliterated
by conjecture, and parol declarations, and fleeting rey-
eries, and heated imaginations. No government on
earth could rest for a moment on such a foundatiop.
It would be a constitution of sand heaped up and dis-
solved by the flux and reflux of every tide of opinion.
Every act of the legislature must therefpre be judged
of from its object and intent, as they are embodied in
its provisions ; and if the latter are within the scope of
admitted powers, the act must be constitutional^ whether
the motive for it were wise, or just, or otherwise. The
manner of applying a power may be an abuse of it ; but
this does not prove, that it is unconstitutional
§ 1087. Passing by these considerations, let the
practice of the government and the doctrines maintain-
ed by those, who have administered it, be deliberately
examined ; and they will be found to be in entire con^-
tency with this reasoning. The very first congress,
that ever sat under the constitution, composed in a con-
siderable degree of those, who had framed, or assbted
in the discussion of its provisions in the state conven-
tions, deliberately adopted this view of the power.
And what is most remarkable, upon a subject of deep
interest and excitement, which at the time occasioned
long and vehement debates, not a single syllable of
doubt was breathed from any quarter against the con-
stitutionality of protecting agriculture and manufactures
by laying duties, although the intention to protect and
encourage them was constandy avowed.^ Nay, it was
1 See I Lloyd's Deb. 17, 19, 22, 23, 24, 26, 27, 28, 31, 34, 39, 43, 46,
47, 50, 51, 52, 55, 64 to 69, 71, 72, 74 to 83, 94, 95, 97, 109, 116, 145,
160,161, 211,212, 243,244, 254; Id. 144, 163, 194, 206, 907. 8m
•Im 5 MarshiOl'i Wadi. ch. 3, p. 189» 190.
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OH. XV.] POWERS or C0NGRE8 8— COMMERCE. 536
contended to be a paramount duty, upon the faithful
fulfilment of which the constitution had been adopted,
and the omission of which would be a political fraud,
without a whisper of dissent from any side.* It was
demanded by the people from various parts of the
Union ; and was resisted by none.* Yet, state jealousy
was never more alive than at this period, and state in-
terests never more actively mingled in the debates of
congress. The two great parties, which afterwards so
much divided the country upon the question of a libe-
ral and strict construction of the constitution, were then
distmctly formed, and proclaimed their opinions with
firmness and freedom. If, therefore, there had been
a point of doubt, on which to hang an argument, it canr
not be questioned, but that it would have been brought
into the array of opposition. Such a silence, under such
circumstances, is most persuasive and convincing.
§ 1088. The very preamble of this act * (the second
passed by congress) is, •* Whereas it is necessary for the
" support of the government, for the discharge of the
" debts of the United States, and the encouragement
** and protection of manufactures^ that duties be laid
^ on goods, wares, and merchandises imported, Be it
"enacted," &c.* Yet, not a solitary voice was raised
against it. The right, and the duty, to pass such laws
was, indeed, taken so much for granted, that in some of
the roost elaborate expositions of the government upon
1 See 1 Uoyd's Deb. 24, 160, 161, 243, 344 ; 4 EUiot'i Deb. App. 351,
352
s See GrimU'8 Speech, in Dec. 1828, p 58, 59, 63.
» Act of 4th July, 1789.
4 It is not a little remarkable, that the culture of cotton was just then
beginning in South Carolina ; and her statesmen then thought, a pro-
tecting duty to aid agriculture was in all respects proper, and constitu-
tional. 1 Uoyd's Deb. 79 ; Id. 210, 211, 212, 244.
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636 CONSTITUTIOK OF THS U. STATS8. [bOOK III.
the subject of manufactures, it was scarcely alluded ta^
The Federalist itself^ dealing with every shadow of ob-
jection against the constitution, never once alludes to
such' a one ; but incidentally commends this power, as
leading to beneficial results on all domesUc interests.'
Every successive congress since that time has constantly
acted upon the system through all the changes of party
and local interests. Every successive executive has
sanctioned laws on the subject ; and most of them have
actively recommended the encouragement of manufac-
tures to congress.* Until a very recent period, no per-
son in the public councils seriously relied upon any
constitutional difficulty.' And even now, when the
subject has been agitated, and discussed with great
ability and zeal throughout the Union, not more than
five states have expressed an opinion against the con-
stitutional right, while it has received an unequivocal
sancdon in the others with an almost unexampled de-
gree of unanimity. And this too, when in most other
respects these states have been in strong opposition to
each other upon the general system of polidcs pursued
by the government.
§ 1089. If ever, therefore, contemporaneous exposi-
tion, and the uniform and progressive operations of
the government itself, in all its departments, can be of
any w;eight to settle the construction of the constitution,
there never has been, and there never can be more
decided evidence in favour of the power, than is fur-
nished by the history of our national laws for the en-
couragement of domestic agriculture and manufactures.
To resign an exposition so sanctioned, would be to de-
1 Hamilton's Report on Manufacturers io 1791.
s The Federalist, No. 10, 35, 41.
3 See 4 Elliot's Debates, App. 353, 354.
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CH, XV.] POWERS OF CONGRESS COMMERCE. 537
liver over the country to interminable doubts ; and to
make the constitution not a written system of govern-
ment, but a false and delusive text, upon which every
successive age of speculatists and statesmen might
build any system, suited to their own views and opin-
ions. But if it be added to this, that the constitution
gives the power in the most unlimited terms, and
neither assigns motives, nor objects for its exercise; but
leaves these wholly to the discretion of the legislature,
aciing for the common good, and the general interests;
the argument in its favour becomes as absolutely irresis-
tible, as any demonstration of a moral or political na-
ture ever can be. Without such a power, the govern-
ment would be absolutely worthless, and made merely
subservient to the policy of foreign nations, incapable
of self-protection or self-support ;* with it, the coun-
try will have a right to assert its equality, and dignity,""
and sovereignty among the other nations of the earth.*
§ 1089. In regard to the rejection of the proposition
in the convention "to establish inslituiionSj rewards^
and immunities for the promotion of agriculture, com-
merce, trades, and manufactures,''* it is manifest, that it
has no bearing on the question. It was a power much
i 4 Jefferson's Correspondence, 260, 281 ; 1 Pitkin's Hist ch. 3,
p. 93 to 106.
9 The foregoing summary has been principally a)[)stracted from the
Letter of Mr. Madison to Mr. Cabell, 18th Sept 1828 ; 4 Elliot's Deb. ^
345 ; Mr. Grimk^'s Speech in Dec. 1828, in the South Carolina senate ;
Mr. Hug er's Speech in the South Carolina legislature, in Dec. 1630 ; Ad«
dress of the New York Convention of the Friends of Domestic Indus-
try, in Oct lo3l ; Mr. Verplanck's Letter to Col. Drayton, in 1831 ; Mr.
Clay's Speech in the senate, in Feb. 1832 ; Mr. Edward Everett's Ad-
dress to the American Institute, in Oct 1831 ; Mr. Hamilton's Report
on Manufactures, in 1791; Mr. Jefferson's Report on the Fisheries, in
1791. See, also, 4 Jefferson's Correspondeoce, 280, 28J.
3 Journal of Convention, p. 261.
VOL. n. 68
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638 COlfSTITUTION OF THE U. STATES. [bOOK III.
more broad in its extent and objects, than the- power
to encourage manufactures by the exercise of another
granted power. It might be contended with quite as
much plausibility, that the rejection was an implied
rejection of the right to encourage commerce, for that
was equally within the scope of the proposition. In
truth, it involved a direct power to establish institu-
tions^ rewards, and immunities for all the great interests
of society, and was, on that account, deemed too
broad and sweeping. It would establish a general, and
not a Umited power of government.
^ 1090. Such is a summary (necessarily imperfect)
of the reasoning on each side of this contested doc-
tnne. The reader will draw his own conclusions ; and
these Commentaries have no further aim, than to put
him in possession of the materials for a proper exer-
cise of his judgment.
§ 1091. When the subject of the regulation of com-
merce was before the convention, the first draft of the
constitution contained an article, that *^ no navigation
^* act shall be passed, without the assent of two thirds
"of the members present in each house."* This ar-
ticle wa^ afterwards recommended in a report of a
committee to be stricken out. In the second revised
draft it was left out ; and a motion, to insert such a re-
striction to have eflfect until the year 1808, was nega-
tived by the vote of seven states against three.* An-
other proposition, that no act, regulating the commerce
of the United States with foreign powers, should be
passed without the assent of two thirds of the mem-
l Journal of CoDvention, p. 22^2.
9 Jourua) of Convention, 223, 285, 286, 293, 358, 387. See, also, 3
American Museumi 62, 4J9, 420 ; 3 American Muaeum, 553 ; 2 PiUdn*8
Hist 261.
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CH. XT.] POWERS OF CONGRESS — COMMERCE. 639
bers of each house, was rejected by the vote of seven
states against four.* The rejection was, probably, oc-
casioned by two leading reasons. First, the general im-
propriety of allowing the minority in a government to
control, and in effect to govern all the legislative pow-
ers of the majority. Secondly, the especial inconve-
nience of such a power in regard to regulations of com-
merce, where the proper remedy for grievances of the
worst sort might be withheld from the navigating and
commercial states by a very small minority of the
other states.* A similar proposition was made, after
the adoption of the constitution, by some of the states ;
but it was never acted upon.'
§ 1092. The power of congress also extends to
regulate commerce with the Indian tribes. This
power was not contained in the first draft of the con-
stitution. It was afterwards referred to the committee
on the constitution (among other propositions) to con-
sider the propriety of giving to congress the power
^^ to regulate affairs with the Indians, as well within, as
without the limits of the United States.** And, in the
revised draft, the committee reported the clause, •* and
with the Indian Tribes,*' as it now stands.^
§ 1093. Under the confederation, the continental
congress were invested with the' sole and exclusive
right and power "of regulating the trade and manag-
ing all affairs with the Indians, not members of any of
the states, provided, that the legislative right of any
state within its own Umits be not infiinged or vio-
lated.**^
^ Journal of ConventioD, 906.
s See The Federalist, No. 22; 1 TuckePi Black. Comm. App. 253»
375.
3 1 Tacker's Black. Comm. App. 253, 375.
4 Journal of Convention, 220, 260, 856. « Art 9.
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640 OONSTITUTIOlf OF THE U. STATEjS. [bOOK Ul.
§ 1094. Antecedently to the American Revoluticm
the authority to regulate trade and intercourse with the
Indian tribes, whether they were within, or without
the boundaries of the colonies, was understood to be-
long to the prerogative of the British crown.^ And
after the American Revolution, the like power would
naturally fall to the federal government, with a view to
the general peace and interests of all the states.* Two
restrictions, however, upon the power were, by the
above article, incorporated into the confederation, which
oocasicmed endless embarrassments and doubts. The
power of congress was restrained to Indians, not mem-
bers of any of the states ; and was not to be exercised,
80 as to violate or infringe the legislative right of any
state within its own limits. What description of In-
dians were to be deemed members of a state was never
settled imder the confederation; and was aquestion of fre-
quent perplexity and contention in the federal councils.
And how the trade with Indians, though not members
of a state, yet residing within its legislative jurisdiction,
was to be regulated by an external authority, without
80 far intruding on the internal rights of legislation, was
absolutely incomprehensible. In this case, as in some
other cases, the articles of confederation inconsiderately
endeavoured to accomplish impossibilities ; to reconcile
a partial sovereignty m the Union, with complete sove-
reignty in the states; to subvert a mathematical
axiom, by taking away a part, and letting the whole re-
main.' The constitution has wisely disembarrassed the
1 WorcesUr y. SUUe qf Georgia, 6 Petera's R. 515; JohntM v. Mek^
toih, 8 Wheat R. 543; Journal of Congress, 3 Augost, 1787, 19Ui tol.
p. 81 to 86.
» Ibid.
» The Federalist, No. 42 ; J Tuck. Black. Comm. App. 268 j 12 Jour,
of CoQgreaa, 3 August, 1787, p. .81 to 64.
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OEU XT.] P0WEB8 OF CONGRESS ~- COMMSROE. 541
power of these two limitations ; and has thus given to
congress, as the only safe and proper depositary, the
exclusive power, which belonged to the crown in the
ante-revolutionary times ; a power indispensable to the
peace of the states, and to the just preservation of the
rights and territory of the Indians.* In the former
illustrations of this subject, it was stated, that the
Indians, from the first settlement of the country, were
always treated, as distinct, though in some sort, as
dependent nations. Their territorial rights and sove-
reignty were respected. They were deemed inca-
pable of carrying on trade or intercourse with any for-
eign nations, or of ceding then* territories to them.
But their right of self-government was admitted ; and
they were allowed a national existence, under the pro-
tection of the parent country, which exempted them
fix)m the ordinary operations of the legislative power
of the colonies. During the revdution and afterwards
they were secured in the like enjoyment of their rights
and property, as separate communities.* The govern-
ment of the United States, since the constitution^ have
always recognised the same attributes of dependent
sovereignty, as belonging to them, and claimed the
same right of exclusive regulation of trade and mter-
course with them, and the same authority to protect
and guarantee their territorial possessions, immunities,
and jurisdiction.'
i Worcester v. The State ef Georgioj 6 Peters*8 R. 515 ; IS Journ. «f
Congress, 3 August, 1787, p. 81 to 84.
« Johnsim ▼. J^Mosh, 8 Wheat. R. 543; Fkteker r. Pedb, 6 CniBch,
146, 147, per Johnson J. ; The Cherokee MUion v. Oeorgioy 6 Peters^s R.
1 ; fForcester v. The Slaie o/ Oeoi^, 6 Peters's R. 515; laeJuon ▼. Good-
a, 30 Johnson's R. 193 ; 3 Kent's Comm. Leet. 50, p. 303 to 318.
3 Worcester v. Stosle of Georgia, 6 Peters's R. 515 ; Joam. of Congress
3 Aagost, 1787, vol. \% p. 81 to 84.— Mr. Blunt, in his valuable Historical
Sketch of the Formation of the Confederaey, l&c. has given ft very Ml
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542 COKSTITUTION OF THE JJ. STATES. [bOOK III.
§ 1095. The power, then, given to congress to reg-
ulate commerce with the Indian tribes, extends equally
to tribes living within or without the boundaries of par-
ticular states, and within or without the territorial limits
of the United States. It is (says a learned commen-
tator) wholly immaterial, whether such tribes continue
seated within the boundaries of a state, inhabit part of
a territory, or roam at large over lands, to which the
United States have no claim. The trade with them is,
in all its forms, subject exclusively to the regulation of
congress. And in this particular, also, we trace the
wisdom of the constitution. The Indians, not distract-
ed by the discordant regulations of different states,
are taught to trust one great body, whose justice they
respect, and whose power they fear.^
^ 1096. It has lately been made a question, whether
an Indian tribe, situated within the territorial boundaries
of a state, but exercising the powers of government,
and national sovereignty, under the guarantee of the
general government, is a foreign state in the sense of
the constitution, and as such entitled to sue in the
courts of the United States. Upon solemn argument,
it has been held, that such a tribe is to be deemed
politically a state ; that is, a distinct political society,
capable of self-government ; but it is not to be deemed
a foreign state, in the sense of the constitution. It is
rather a domestic dependent nation. Such a tribe
view of the ante-revolutionary, as well as post-revolutionary authority
exercised in regard to the Indian tribes. See Blunt's Historicid
Sketch, dLC. (New- York, 1825.) Mr. Jefferson's opinion was, that the
United States had no more than a right of pre-emption of the Indian
lands, not amounting to any dominion, or jurisdiction, or permanent au-
thority whatever; aUd that the Indians possessed a full, undivided, and
independent sovereignty. 4 Jefferson's Corresp. 478.
1 Rawle on the Constitution, ch. 9, p. 84. See also 1 Tack. Black.
Conun. App. 254 ; 1 Kent's Comm.Lect 50, p. 308 to 3ia
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CH. XV.] POWERS OF CONGRESS — COMMERCE. 643
may properly be deemed in a state of pupillage ; and its
relation to the United States resembles that of a ward
to a guardian.* *
1 The Cherokee J^atxon v. Georgia, 5 Peters'e R. 1, 10, 17 ; Jackson v.
Goodell, 20 John. R. 193 ; 3 Kent's Coram. Lect 50, p. 308 to 318. —
In the first volume of Bioren &, Daane's edition of the laws of the United
States, there will be found a history of our Indian Treaties and Laws
regulating Intercourse and Trade with the Indians. 1 United States
Laws, 597 to 620.
* While this sheet was passing through the press, President Jackson's
Proclamation of the 10th of December, 18^ concerning the recent
Ordinance of South-Carolina on the * subject of the tariff, appeared.
That document contains a most elaborate view of several questions, which
have been discussed in this and the preceding volume, especially respect-
ing the supremacy of the laws of the Union ; the right of the judiciary to
decide upon the constitutionality of those laws ; and the total repugnan*
cy to the constitution of the modem doctrine of nullification asserted in
that ordinance. As a state paper it is entitled to very high praise for
the clearness, force, and eloquence, with which it has defended the
rights and powers of the national government I gladly copy into these
pages some of its important passages, as among the ablest commentaries
ever ofiTered upon the constitution.
^ Whereas, a convention assembled in the state of South-Carolina
have passed an ordinance, by which they declare, * TJiat the several acts
and parts of acts of the congress of the United States, purporting to be
laws for the imposing of duties and imposts on the importation of for-
eign commodities, and now having actual operation and efiect within
the United States, and more especially,' two acts for the same purpose
passed on the 29th of May, 1828, and on the 14th of July, 1832, < are
unauthorized by the constitution of the United States, and violate the
true meaning and intent thereof, and are null and void, and no law,'
nor binding on the citizens of that state or its officers : and by the said
ordinance, it is further declared to be unlawful for any of the constituted
authorities of the state, or of the United States, to enforce the payment
of the duties imposed by the said acts within the same state, and that it
is the duty of the legislature to pass such laws, as may be necessaiy to
give full effect to the said ordinance :
** And whereas, by the said ^ordinance, it is further ordained, that in
no case of law or equity, decided in the courts of said state, wherein
shall be drawn in question the validity of the said ordinance, or of the
acts of the legislature, that may be passed to givo it effect, or of the
said laws of the United States, no appeal shall be allowed to the Su-
preme Court of the United States, nor shall any copy of the record be
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644 CONSTITUTION OF THE U. STATES. [bOOK IIL
permitted or allowed for that purpose, and that any person attefiiptiiig
to take such appeal shall be punished as for a contempt of court :
** And, finally, the said ordinance declares, that the people of South-
Carolina will maintain the said ordinance at every hazard ; and that
they will consider the passage of any act by congress, abolishing or clos-
ing the ports of the said state, or otherwise obstructing the free ingress
or egress of vessels to and from the said ports, or any other act of the
federal government to coerce the state, shut up her ports, destroy or
harass her commerce, or to enforce the said acts otherwise, than
through the civil tribunals of the country, as inconsistent with the long-
er continuance of South-Carolina in the Union ; and that the people of
the said state will thenceforth hold themselves absolved from all further
obligation to maintain or preserve their political connexion with the peo-
ple of the other states, and will forthwith proceed to organize a separate
government, and do all other acts and things, which sovereign and inde-
pendent states may of right do :
** And whereas, the said ordinance prescribes to the people of South-
Carolina a course of conduct, in direct violation of their duty, as citizens
of the United States, contrary to the laws of their country, subversive
of its constitution, and having for its object the destruction of the Union,
— that Union, which, coeval with our political existence, led our fathers,
without any other ties to unite them, than those of patriotism and a
common cause, through a sanguinary struggle to a glorious independ-
ence,— that sacred Union, hitherto inviolate, which, perfected by our
happy constitution, has brought us, by the favour of Heaven, to a state
of prosperity at home, and high consideration abroad, rarely, if ever,
equalled in tlie history of nations. To preserve this bond of our politcal
existence from destruction, to maintain inviolate this state of national
honour and prosperity, and to justify the confidence my fellow-citizens
have reposed in me, I, Andrew Jackson, PrtsiderU o/Uu UniUd SlattSt
have thought proper to issue this my Proclamation, stating my views
of the constitution and laws, applicable to the measures adopted by the
copvention of South-Carolina, and to the reasons they have put forth to
sustain them, declaring the course, which duty will require me to pursue,
and, appealing to the understanding and patriotism of the pf ople, warn
them of the consequences, that must inevitably result from an observance
of the dictates of the convention.
** Strict duty would require of me nothing more, than the exercise of
those powers, with which I am now, or may hereafter be, invested, for
preserving the peace of the Union, and for the execution of the laws.
But the imposing aspect, which opposition has assumed in this case, by
clothing itself with state authority, and the deep interest, which the peo-
ple of the United States must all feel in preventing a resort to stronger
measures, while there is a hope, that any thing will be yielded to rea*
■oning and remonstrance, perhaps demand, and will certainly ju8tify,4i
full exposition to South-Carolina and the nation of the views I entertain
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OH. XV.] POWERS OF CONGRESS — COMMERCE. 645
of this important qnestion, as well as a distinct enunciation of the coarse,
which my sense of duty will require me to pursue.
** The ordinance is founded, not on the indefeasible right of resisting
acts, which are plainly unconstitutional and too oppressive to he endur-
ed ; but on the strange position, that any one state hm y not only declare
an act of congress void, but prohibit its execution, — that they may do
this consistently with the constitution, — that the true construction of
that instrument permits a state to retain its place in the Union, and yet
be bound by no other of its laws, than those it may choose to consider
at onstitDtional. It is true, they add, that to justify this abrogation of
a law, it must be palpably controry to the constitution ; but it is evident,
that to give the right of resisting laws of that description, coupled with
the cncontrollod right to decide, what laws deserve that character, is to
give the power of resisting all laws. For, as by the theory there is
no appeal, the reasons alleged by the state, good or bad, must prevail.
If it should be said, that public opinion is a sufficient check against the
abuse of this power, it may be asked, why it is not deemed a sufficient
gnard against the passage of an unconstitutional act by congress. There
is, however, a restraint in this last case, which makes the assumed power
of H state more indefensible, and which does not exist in the other.
There are two appeals from an unconstitutional act passed by congress,
— one to the judiciary, the other to the people, and the states. There
is no appeal from the state decision in theory, and the practical illustra-
tion shows, that the courts are closed against an application to review it,
both judges and jurors boing sworn to decide in its favour. But rea-
soning on this subject is superfluous, when our social compact in express
terms declares, that the laws of the United States, the constitution, and
treaties made under it, are the supreme law of the land ; and for great-
er caution adds, ' that the judges in every state shall be bound thereby,
any thing in the constitution or laws of any state to the contrary not-
withstanding.' And it may be asserted without fear of refutation, that
no federative government could exist without a similar provision. Look
for a moment to the consequence. If South-Carolina oDnsiders the rev-
enue laws unconstitutional, and has a right to prevent their execution in
the port of Charleston, there would be a clear constitutional objection to
their collection in every other port, and no revenue could be collected
any where ; for all imposts must be equal. It is no answer to repeat,
that an unconstitutional law is no law, so long as the question of its
legality is to be decided by the state itself; for every law, operating in-
juriously upon any local interest, will be perhaps thought, and certainly
represented, as unconstitutional, and, as has been shown, there is no
appeal.
** If this doctrine bad been established at an earlier day, the Union
would have been dissolved in its infancy. The excise law in Pennsyl-
vania ; the embargo and non-intercourse law in the Eastern states ; the
carriage tax in Virginia, were all deemed unconstitutional, and }
VOL. II. 69
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546 CONSTITUTION OF THE U. STATS8. [bOOK UU
more unequal in their operation, than any of the laws now complained
of; but fortunately none of those states discovered, that they had the
right now claimed by South-Carolina. The war, into which we were
forced, to support the dignity of the nation and the rights of our citizens^
might have ended in defeat and disgrace, instead of victory and hooour,
if the states, who supposed it a ruinous and unconstitutional measure, had
thought they possessed the right of nullifying the act, by which it wae
declared, and denying supplies for its prosf^cution. Hardly and une-
qually, as those measures bore upon several members of the Union, to
liiie legislatures of none did this efficient and peaceable remeily, as it is
called, suggest itself. The iliscovery of this important feature in our
constitution was reset ved to the present day. To the statesmen of
South-Carolina belongs the invention ; and U|ion the citizens of that
state will unfortunately fall the evils of reducing it to practice.
*' If the doctrine of a state veto upon the laws of the Union carries
with it internal evidence of its impracticable absurdity, our constitutional
history will also afford abundant proof, that it would have been repudi-
ated with indignation, had it l>e*$n proposed to form a feature in our
government
^In our colonial state, although dependent on another power, we very
early considered ourselves, as connected by common interest with etch
other. Leagues were forme4i for common dsfence, and before the Dec-
laration of Independence we were known inour aggregate character,
as Tub United Coi.omiks or AMKaiCA. That decisive and important
step was taken jointly. We declared ourselves a nation by a joint, not
by several acts ; and when the terms nf our confederation were reduced
to form, it was in that of a solemn league of several states, by which they
agreed, that they would collectively form one nation, for the purpoee of
conducting some certain domestic concerns, and all foreign relations.
In the instrument forming that union is found an article, which declares,
that ' every state shall abide by the tleterminations of congress on all
questions, which by that confederation should be submitted to them.'
*^ Under the confederation, then, no state could legally annul a decis-
ion of the congress, or refuse to submit to its execution ; but no pro-
Tision was made to enforce these decisions. Congress made requisitions,
but they were not complied with. The government could not operate
ad individuals. They bad no judiciary, no means of collecting revenue,
** But the defects of the confederation need not be detailed. Under
its operation we could scarcely be called a nation. We hid neither
prosperity at home, nor consideration abroad. This state of things could
not be endured ; and our present happy constitution was formed, but
formed in vain, if this fatal doctrine prevails. It was formed for important
objects, that are announced in the preamble, made in the name and by
the authority of the people of the United States, whose delegates framed,
and whose conventions approved it. The most important among these
objects, that, which is placed first in rank, on which all the others reet,
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CH. XV.] POWERS or COKGRESS COMMERCE. 547
18, * to/onn a more perfect VnionJ* Now, is it possible, that even if there
were no express provision giving supremacy to the constitution and
kws of the United States over those of the states, it can be conceived,
that an instrument, made for the purpose of * forming a more perfect
Uniofty* than that of the confeJerntion, could be so constructed by the
assembled wisdom of our country, as to substitute for that confederation
a form of government dependent for its existence on the local interest,
the party spirit of a state, or of a prevailing faction in a state ? Every
man of plain, unsophisticated understanding, who hears the question,
will give such an answer, as will preserve the Union. Metaphysical
subtlety, tn pursuit of an in^racticable theory, could alone have devised
one, that is calculated to destroy it
^ I consider, then, the power to annul a law of the United States, as-
sumed by one state, incompeUible with the existence qfihe Union; conire^
dieted expressly by the letter of the constitution ; unauthorized hy its spirit ;
inconsistent with every principle, on which it was founded; and destructive
of the great object, for which it tons formed,
** After this gfeneral view of the leading principle, we must examine
the particular application of it, which is made in the Ordinance.
'* The preamble rests its justification on these grounds : — It assumes,^
as a fact, that the obnoxious laws, although they purport to be laws for
raising revenue, were, in reality, intended for the protection of manufac-
tures, which purpose it asserts to be unconstitutional ; that the opera-
tion of these laws is unequal ; that the amount raised by them is greater,
than ia required liy the wants of the government ; and finally, that the
proceede are to be applied to objects unauthorized by the constitution.
These are the only causes alleged to justify an open opposition to the
laws of the country, and a threat of seceding from the Union, if any
attempt should be made to enforce them. The first virtually acknow-
ledges, that the law in question was passed under a power expressly
given by the constitution, to lay and collect imposts ; but its constitu-
tionality is drawn in question from the motives of those, who passed it
However apparent this purpose may be in the present case, nothing can
be more dangerous, than to admit the position, that an unconstitutional
purpose, entertained by the members, who assent to a law enacted under
a constitutional power, shall make that law void ; for how is that purpose
to be ascertained ? Who is to make the scrutiny ? How often may
bad purposes be falsely imputed ? in how many cases are they concealed
by false professions? in how many is no declaration of motive made?
Admit this doctrine, and you give to the states an uncontrolled right to
decide ; and every law may be annulled under this pretext If, there-
fore, the absurd and dangerous doctrine should be admitted^that a state
may annul nn unconstitutional law, or one that it deems such, it will not
apply to the present case.
^'The next objection is, that the laws in question operate unequally.
This objection may be made» with truth, to every law that has been or
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548 CONSTITUTION OF THE V. STATES. [BOOK UI.
ctn be passed. The wisdom of man never yet contrived a system of
taxation, that would operate with perfect equality. If the unequal opera-
tion of a law makes it unconstitutional, and if all laws of that descrip-
tio may be abrogated by any state for that cause, then, indeed, is the
federal constitution unworthy of the slightest effort for its preservat on.
We have hitherto relied on it, as the perpetual bond of oar onion. We
have received it, as the work of the assembled wisdom of the nation.
We have trusted to it, as the sheet-anchor of our safety in the stormy times
of conflict with a foreiirn or domestic foe. We have looked to it with
■acred awe, as the palladium of our liberties, and with all the solemnities
of religion have pledged to each other our lives and fortunes here, and
oar hopes of happiness hereafter, in its defence and support Were 'we
mistaken, my countrymen, in attaching this importance to the constitu-
tion of our country ? Was our devotion paid to the wretched, inefficient,
clumsy contrivance, which this new doctrine would make it ? Did we
jdedge ourselves to the support of an airy nothing, a bubble, that must
be blown away by the first breath of disaffection ? Was this self-de-
stroying, visionary theory, the work of the profound statesmen, the ex-
alted patriots, to whom the task of constitutional reform was entrust-
ed ?
** Did the name of Washington sanction, did the states deliberately
ratify such an anomaly in the history of fundamental legislation ? No.
We were not mistaken. The letter of this great instrument is free from
this radical fault: its language directly contradicts the imputation: its
spirit, its evident intent, contradicts it No, we did not err ! Oar
constitution does not contain the absurdity of giving power to make laws,
and another power to resist them. The sages, whose memory will al-
ways be reverenced, have given us a practical, and, as they hoped, a
permanent constitutional compact The father of his country did not
affix his revered name to so palpable an absurdity. Nor did the states,
when they severally ratified it, do so under the impression, that a veta
on the laws of the United States was reserved to them, or that they
could exercise it by implication. Search the debates in all their conven-
tions , examine the speeches of the most zealous opposers of federal
authority ; look at the amendments, that were proposed ; they are all
silent ; not a syllable uttered, not a vote given, not a motion made to
correct the explicit supremacy given to the laws of the Union over
those of the states, or to show that implication, as is now contended,
could defeat it No ; we have not erred ! The constitution is still
the object of our reverence, the bond of our Union, our defence in dan-
ger, and the source of our prosperity in peace. It shall descend, as we
have received it, uncorropted by sophistical construction, to our posteri-
ty ; and the sacrifices of local interest, of state prejudices, of personal
animosities, that were made to bring it into existence, will agaia be pa-
triotically offered for its support
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CH. XT.] POWERS OF CONGRESS — COMMERCE. 549
^ The two remaining objections made by the Ordinance to these laws
are, that the sums intended to be raised by them are greater, than are
required, and that the proceeds will be unconstitutionally employed.
^ The constitution has given expressly to congress the right of raising
revenue, and of determining the sum the public exigencies will require.
The states have no control over the exercise of this right, other tlian
that, which results from the power of changing the representatives v ho
abuse it, and thus procure redress. Congress may undoubtedly abuse
this discretionary power, but the same may be said of others, with which
they are vested. Yet the discretion must exist somewhere. The con-
stitution has given it to, the representatives of all the people, checked
by the representatives of the states, and by the executive power. The
South-Carolina construction gives it to the legislature or the convention
of a single state, where neither the people of the different states, nor
the states in their separate capacity, nor the chief magistrate elected by
the people, have any representation. Which is the most discreet dispo-
sition of the power ? I do not ask you, fellow citizens, which is the
constitutional disposition ; that instrument speaks a language not to be
misunderstood. But if you were assembled in general convention,
which would you think the safest depository of this discretionary power
in the last resort ? Would you add a clause, giving it to each of tho
states, or would you sanction the wise provisions already made by your
constitution ? If this should be the result of your deliberations, when
providing for the future, are you, can you be ready to risk all, that we
hold dear, to establish, for a temporary and a local purpose, that, which
you must acknowledge to be destructive and even absurd, as a general
provision ? Carry out the consequences of this right vested in the
different states, and you must perceive, that the crisis your conduct pre-
sents at this day would recur, whenever any law of the United States
displeased any of the states, and that we should soon cease to be a na-
tion.
'^ The Ordinance, with the same knowledge of the future, that charac-
terizes a former objection, tells you, that the proceeds of the tax will be
unconstitutionally applied. If this could be ascertained >yith ceitainty,
the objection would, with more propriety, be reserved for the law so
applying the proceeds ; but surely cannot be urged against the laws levy-
ing the duty.
^ These are the allegations contained in the Ordinance. Examine
them seriously, my fellow citizens, — judge for yourselves. I appeal to
you to determine, whether they are so clear, so convincing, as to leave
no doubt of their correctness ; and even if you should come to this con-
clusion, how far they justify the reckless, destructive course, which you
are directed to pursue. Review these objections, and the conclusions
drawn from them, once more. What are they P Every law, then, for
raising revenue, according to the South-Carolina Ordinance, may be
rightfolly annulled, unless it be so framed, as no law ever will or can
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560 CONSTlTUTIOir OF THE U. STATES. [bOOK UU
be framed. Congress hnre a right to pass laws for raising revenue, and
each state has a right to oppose tlieir exeeutioo, — two rights directly
opposed to each other ; — and yet is this absurdity supposed to be con-
tained in an instrument, drnwn for the express purpose of avoiding colli-
sions between the states and the ^reneral government, by on assembly
of the most enlightened statesmen and purest patriots ever embodied for
^ a similar purpose.
** In vain have these sages declared, that congress shall have power
to lay and collect taxes, duties, imposts, and excises ; in vain have they
provided, that they shall have power to pass laws, which shall be Leces-
sary and proper to carry those powers into execution ; that those laws
and that constitution shall be the ^ supreme law of the land, and that the
judges in every state shall be bound thereby, any thing in the constitu-
tion and laws of any state to the contrary notwithstanding.' In vain
have the people of the several states solemnly sanctioned these provi-
sions, made them their paramount law, and individually sworn to sup-
port them whenever they were culled on to execute any office. Vain
provisions! ineffectual restrictions ! vile profanations of oaths! miserable
mockery of legislation ! if the bare majority of the voters in any one
state may, on a real or supposed knowledge of the intent, with which a
law has been passed, declare themselves free from its operation, — say
here it gives too little, there too much, and operates unequally, — here
it suffers articles to be free« that ought to be taxed, — there it taxes those,
that ought to be free — in this case the proceeds are intended to be ap-
plied to purposes, which we do not approve, — in that the amount raised
is more than is wanted. Congress, it is true, are invested by the con-
stitution with the right of deciding these questions according to their
sound discretion ; congress is composed of the representatives of all
the states, and of all the people of all the states ; but we, part of the
people of one state, to whom the constitution has given no power on the
subject, from whom it has expressly taken it away, — we. who have sol-
emnly agreed, that this constitution shall be our law, — we, most of
whom have sworn to support it, — we now abrogate this law, and swear,
and forte others to swear, that it shall not be obeyed ; — and we do this,
not because congress have no right to pass such laws ; this we do not
allege ; but because they have passed them with improper views. They
arc unconstitutional, from the motives of those, who passed them, which
we can never with certainty know, from their unequal operation, al-
though it is impossible, from the nature of things, that they should be
equal, and from the disposition, which we presume may be made of
their proceeds, although that disposition has not been declared. This
is the plain meaning of the ordinance in relation to laws, which it abro-
gates for alleged unconstitutionality. But it does not stop there. It
repeals, in express terms, an important part of the constitution itself, and
of laws passed to give it effect, which have never been alleged to be un-
constitotionaL The constitution declares, that the judicial powers of
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qH. XV.] POWERS OF C0KGRSS8 — COMMERCE. 661
the United States extend to cases arisinsf under the laws of the United
States, and that surh laws^ the constitotion and treaties, shall be para-
mount to the state constitutions and Inws. The judiciary act prescribes
the mode, by which the case may be brout*ht before a court of the United
States hy appeal, when a stiite tribunal shall decide against this provi-
sion of the ronstitutioo. The ordinance declares, that there shall be no
appeal — makes the state law paramount to the constitution aud laws of
the^ United Stales ^ forces judges ami jurors to swear, that they will
disregard their provisions ; and even makes it penal in a suitor to at-
tempt relief by appeal. It furtlier declares, that it shall not be lawful
for the authorities of the United States, or of that state, to enforce the
payment of duties imposed by the revenue laws within its limits.
''Here is a law of the United States, not even pretended to be uncon-
stitutional, repealed by the authority of a small majority of the voters of
a single state. Here is a provision of the coustitution, which b solemnly
abrogated by the same authority.
** On such expositions and reasonings, the ordinance grounds not only
an assertion of tiie right to annul the law-«, of which it complains, but to
enforce it by a threat of seceding from the Union, if any attempt is made
to execute them.
'* This right to secede is deduced from the nature of the constitution,
which they say is a compact between sovereign states, who have pre-
served their whole sovereignty, and therefore are subject to no superior ;
that because they made the compact, they can break it, when, in their
opinion, it has been departed from by the other states. Fallacious as
this course of reasoning is, it enlists state pride, and finds advocates in
tiie honest prejudices of those, who have not studied the nature of our
government sufficiently to see the radical eiror, on which it rests.
** The people of the United States formed the coustitution, acting
through the state legislatures in making the compact, to meet and discuss
its provisions, and acting in separate conventions, when they iratified
those provisions ; but the terms used in its construction, show it to be a
government, in whicn the people of all the states collectively are repre-
sented. We are onr people in the choice of president and vice-presi-
dent Here the states have no other agency, than to direct the mode, in
which the votes shall be given. The candidates having the majority of
all the votes are chosen. The electors of a majority of states may have
given their votes for one ciindiilate, and yet another may be chosen.
The people, then, and not the stetes, are represented in the executive
branch.
** In the house of representatives there is this difference, that the peo-
ple of one state do not, as iu the case of president and vice-president,
all vote for the same officers. The people of all the states do not vote
for all the members, each state electing its own representatives. But
this creates no material distinction. When chosen, they are all repre-
sentatives of the United States, not representatives of the particular
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562 CONSTITUTION OP THE V. STATES. [BOOK III.
state from whence they come. They are paid by the United States,
not by the state ; nor are they accountable to it for any act done in the
performance of their legislative functions ; and however they may in
practice, as it is their .duty to do, consult and prefer the interests of their
particular constituents, when they come in conflict with any other partial
or local interest, yet it is their first and highest duty, as representatives
of the United States, to promote the general good.
** The constitution of the United States, then, forms a government^
not a league ; and whether it be formed by compact between the s tes,
or in any other manner, its character is the same. It is a government,
in which all the people are represented, which operates directly on the
people individually, not upon the stotes ; they retainied all the power
they did not grant But each state having expressly parted with so
many powers, as to constitute jointly with the other states a single nation,
cannot from that period possess any right to secede, because such seces-
sion does not break a league, but destroys the unity of a nation ; and
any injury to that unity is not only a breach, which would result from the
contravention of a compact ; but it is an offence against the whole Union.
To say, that any state may at pleasure secede from the Union, is to say
that the United States are not a nation ; because it would be a solecism
to contend, that any part of a nation might dissolve its connexion with
the other parts, to their injury or ruin, without committing any ofl^ence.
Secession, like any other revolutionary act, may be morally justified by
the extremity of oppression ; but to call it a constitutional right, is con-
founding the meaning of terms ; and can only be done through gross
error, or to deceive those, who are willing to assert a right, but would
pause before they made a revolution, or incur the penalties consequent
on a failure.
" Because the Union was formed by compact, it is said the parties to
that compact may, when they feel themselves aggrieved, depart from it ;
but it is precisely because it is a compact, that they cannot. A compact
is an agreement, or binding obligation. It may, by its terms, have a
sanction or penalty for its breach, or it may not If it contains no sanc-
tion, it may be broken with no other consequence, than moral guilt: if it
have a sanction, then the breach incurs the designated or implied pen-
alty. A league between independent nations, generally, has no sanc-
tion, other than a moral one ; or, if ii should contain a penalty, as there
is no common superior, it cannot be enforced. A government, on the
contrary, always has a sanction, express or implied ; and in our case, it
is both necessarily implied, and expressly given. An attempt by force
of arms to destroy a government, is an offence, by whatever means the
constitutional compact may have been formed ; and such government
has the right, by the law of self-defence, to pass acts for punishing the
offender, unless that right is modified, restrained, or resumed by the
constitutional act In our system, although it is modified in the case of
treason, yet authority is expressly given to pass all laws necessary to
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CH. XV.] POWERS OF CONGRESS — COMMERCE. 653
carry its powers into effect, and under this grant provision has been
made for punishing acts, which obstruct the due administration of the
laws.
<' It would seem superfluous to add any thing to show the nature of
that Union, which connects us ; but as erroneous opinions on this sub-
ject are the foundati6n of doctrines the most destructive to our peace,
I must give some further develo|)eraent to my views on this subject, No
one, fellow citizens, has a higher reverence for the reserved rights of the
states, than the magistrate, who now addresses you. No one would
make greater personal sacrifices, or official exertions to defend them
from violation ; but equal care must be taken to prevent, on their part,
an improper interference with, or resumption of the rights they have
vested in the nation. The line has not been so distinctly drawn, as to avoid
doubts in some cases of the exercise of power. Men of the best inten-
tions, and soundest views may differ in their construction of some parts
of the constitution ; but there are others, on which dispassionate reflec-
tion can leave no doubt. Of this nature appears to be the assumed
right of secession. It rests, as we have seen, on the alleged undivided
sovereignty of the states, and on thrir having formed, in this sovereign
capacity, a compact, which is called the constitution, from which, be-
cause they made it, they have the right to secede. Both of these positions
are erroneous, and some of the arguments to prove them so have been
anticipated.
** The states severally have not retained their entire sovereignty. It
has been shown, that, in becoming parts of a nation, not members of a
league, they surrendered many of their essential parts of sovereignty.
The right to make treaties, declare war, levy taxes, exercise exclusive
judicial and legislative powers, were all of them functions of sove-
reign power. The states, then, for all these important purposes, were
na longer sovereign. The allegiance of their citizens was transferred,
in the first instance, to the government of the United States ; they be-
came American citizens, and owed obedience to the constitution of the
United States, and to laws made in conformity with the powers it vested
in congress. This last position has not been, and cannot be denied.
How, then, can that state be said to be sovereign and independent, whose
citizens owe obedience to laws not made by it. and whose magistrates
are sworn to disregard those laws, when they come in conflict with
those passed by another ? What shows conclusively, that the states
cannot be said to have reserved an undivided sovereignty, is, that they
expressly ceded the right to punish treason ; not treason against their
separate power, but treason against the United States. Treason is an
offence against sovereignty^ and sovereignty must reside with the power
to punish it. But the reserved rights of the states are not less sacred,
because they have, for their common interest, made the general govern-
ment the depositary of these powers.
" The unity of our political character, (as has been shown for another
VOL. II. 70
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554 CONSTITUTION OF THE U. STATES. [bOOK III.
purpose) commenced with its very existence. Under the royal govern-
ment we had no separate character ; our opposition to its oppressions
began as United Colonies. We were the United States under the
confederation, and the name was perpetuated, and the Union rendered
more perfect by the Federal constitution. In none of these stages did
we consider ourselves in any other light, than as forming one nation.
Treaties and alliances were made in tiie name of all. Troops were
raised for the joint defence. How, then, with all these proofs, that un-
der all changes of our position we had, for designated purposes and
with defined powers, created National governments ; how is it, that the
most perfect of those several modes of Union should now be considered
as a mere league, that may be dissolved at pleasure ? It is from an
abuse of terms. * Compact ' is used, as synonymous with * league,' although
the true term is not employed, because it would at once show the fallacy
of the reasoning. It would not do to say, that our constitution was only
a league ; but it is laboured to prove it a compact, (which in one sense
it is,) and then to argue, that, as a league is a compact, every compact
between nations must of course be a league, and that from such an en-
gagement every sovereign power has a right to recede. But it has been
shown, that in this sense the states are not sovereign, and that even if
they were, and the national constitution had been formed by compact,
there woidd be no right in any one state to exonerate itself from its
obligations.
" So obvious are the reasons, which forbid this secession, that it is
necessary only to allude to them. The Unior was formed for the benefit
of all. It was produced by mutual sacrifices of interests and opinions.
Can those sacrifices be recalled ? Can tlie states, who magnanimously
surrendered their title to the territories of the West, recall the grant?
Will the inhabitants of the inland states agree to pay the duties, that
may be imposed without their assent, by those on the Atlantic or the
Gulf, for their own benefit ? Shall there be a free port in one state, and
onerous duties in another ? No one believes, that any right exists, in a
single state, to involve the others in these and countless other evils,
contrary to the engagements solemnly made. Every one must see, that
the other states, in self-defence, must oppose at all hazards.
"These are the alternatives, that are presented by the convention :
A repeal of all the acts for raising revenue, leaving the government with-
out the means of support ; or an acquiescence in the dissolution of our
Union by the secession of one of its members. When the first was pro-
posed, it was known, that it could not be listened to for a moment. It
was known, if force was applied to oppose the execution of the laws,
that it must be repelled by force ; that congress could not, without in-
volving it'jplf in (lis^rraco, ond the country in ruin, accede to the proposi-
tion ; and yet, if this is not done on a given day, or if any attempt is made
to execute the laws, the state is, by the ordinonce, declared to be out of
the Union. The majority of a convention assembled for the purpose
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CH. Xy.] POWERS OF CONGRESS — COMMERCE. 555
have dictated these terms, or rather this rejection of all terms, in the
name of the people of South Carolina. It is true, that the governor of
the state speaks of the submission of their grievances to a convention
of all the states, which, he says, they 'sincerely and anxiously seek and
desire.' Yet this obvious and constitutional mode of obtaining the sense
of the other states, on the construction of the federal compact, and
amending it, if necessary, has never been attempted by those, who have
urged the state on to this destructive measure. The state might haVe
proposed to call for a general convention to the other states ; and con-
gress, if a sufficient number of them concurred, must have called it.
But the first magistrate of South Carolina, when he expressed a hope,
that, < on a review by congress and the functionaries of the general
government of the merits of the controversy,' such a convention will be
accorded to them, must have known, that neither congress, nor any func-
tionary of the general government, has authority to call such a con-
vention, unless it be demanded by two thirds of the states. . This sug-
gestion, then, is another instance of the reckless inattention to the pro-
visions of the constitution, with which this crisis has been madly hurried
on ; or of the attempt to persuade the people, that a constitutional reme-
dy had been sought and refused. If the legislature of South Carolina
* anxiously desire ' a general convention to consider their complaints,
why have they not made application for it, in the way the constitution
points out? The assertion, that they ' earnestly seek ' it, is completely
negatived by the omission."
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